PR Flashcards
to passs
1
Q
rule 1: competence
A
1.0(e): informed consent denotes the agreement by a person to a proposed course of conduct after the lawyer communicated adequate info. & explanations about the material risk AND reasonable available alternatives
2
Q
1.1
A
an attorney shall have the learning, skills and mental, emotional and physical ability to represent a client (thoroughness and preparation reasonably necessary for the representation)
3
Q
1.16 (A) Mandatory Withdrawal:
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Must withdraw from client if representation will result in violation in PR rules, lawyer mental or physical condition impairs ability to represent or lawyer is discharged
4
Q
1.16 (A) Mandatory Withdrawal:
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Must withdraw from client if representation will result in violation in PR rules, lawyer mental or physical condition impairs ability to represent or lawyer is discharged
5
Q
1.16 (B)
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7 situations when a lawyer must voluntarily withdraw
6
Q
1.16 (C): withdrawal
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Representation is before the court and attorney must request permissions from judge before being terminated as representation
Court denies lawyer request the lawyer must remain counsel even if good cause for termination
7
Q
1.16(d):
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Upon termination a lawyer shall take steps to reasonable protect client’s interests
8
Q
1.18(a):
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a person who consults with a lawyer about the possibility of forming a lawyer- client relation. To prospective client
9
Q
1.18(b):
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no client-lawyer relation. Lawyer learned of info from a prospective client shall not reveal info except 1.9 would permit
10
Q
1.2 a
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A lawyer may take such action on behalf of the client as is impliedly authorized to carry out representation (implied auth.)(representation and allocation of authority). A lawyer shall abide by a client’s decision concerning the objectives of representation AND shall consult with the client as to the means. Lawyer make take action on behalf of the client as is impliedly auth.
11
Q
1.2 c
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may limit scope of representation if limit is reasonable & client gives informed consent
12
Q
1.2 c & d
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abide by a clients decisions w objectives and shall consult client ( whether to settle a matter, plea, jury ect)
13
Q
1.2 c & d
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abide by a clients decisions w objectives and shall consult client ( whether to settle a matter, plea, jury ect)
14
Q
1.3 Diligence
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a lawyer shall act with reasonable diligence and promptness in presenting a client
15
Q
1.4 Candor
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promptly inform client of any decision or circumstance with respect to which the client’s informed consent, reasonably consult with the client about the means by which the client’s objectives are to be accomplished, keep the client informed about the status of the manner, promptly comply with reasonable requests for information and consult with client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance no permitted by RP (duty of candor)
16
Q
1.4 b
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shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
17
Q
1.6: confidentiality
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a lawyer shall not reveal information relating to the representation of a client unless client gives informed consent (exceptions 1.0(e) , consent implied auth., 1.6(b))
18
Q
1.6 b
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A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary ( duty of confidentiality) ( death 1.6(b 1-2), financial loss 1.6(b)(2-3), attorney defense 1.6(b)(5), compliance 1.6(b)(6), ethics 1.6 (b)(4), law firm conflict 1.6(b)(7)
19
Q
1.6 b 1-3
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lawyer may reveal info if they reasonably believe necessary:(1) to prevent reasonably certain death, (2)prevent client from committing crime,(3) prevent substantial injury to financial interests
20
Q
1.6(b)(a)
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establish claim on behalf of attorney : controversy between attorney and client Or respond to the allegations in any proceeding
21
Q
1.6(c)
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a lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of information
22
Q
1.8 h
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a lawyer shall not make an agreement limiting the lawyers liability to client for malpractice unless the client is independently represented & settle a claim for liability with an unrepresented client unless advised in writing and given opportunity to seek advice
23
Q
1.9 c
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a lawyer who formerly represented the client in a matter shall not: use info relating to the representation to disadv. The former client OR reveal information relating to the representation except as these rules would permit or require with respect to a client
24
Q
rule 5: responsibilities of subordinate lawyer
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5.2(a):
A lawyer is bound by the rule of PC notwithstanding that the lawyer acted at a direction of another person
25
5.2(b):
Subordinate lawyer doesn’t violate rules of PC if that lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable ? of professional duty (objective standard)
26
rule 8.1
applying for admission to the bar
Application for the bar shall not: knowingly make a false statement of material fact or fail to disclose a fact or knowingly fail to respond to lawful demand of info
exception: doesn’t require disclosure of info otherwise protected in Rule 1.6
27
8.4 a
Lawyer violated the rules of professional conduct or knowingly assists someone to violate rules, The uses of acts of another person to commit the violation then they have committed professional misconduct
exception: lawyer was advising a client
28
8.5 a
Disciplinary authority for jurisdiction: to hold lawyers admitted to a jurisdiction and those practicing law in juris. accountable
29
Fiduciary Duty: 4 duties
Status ( look at scope of engagement)
Circumstances (confidential relations)
- beneficiary offers and fiduciary accepts: based on nature of relation. Skills in area or entrusting secret/ confidential info
Loyalty: treat beneficiaries atleast as well as they treat themselves
Lawyer must not act in manner adverse to interest of clients
Must not act for their own benefit in relation to engage: Except for comp. For service— parties must have understanding
Duty of care: Requires layer to exercise skill, diligence, care & posses level of knowledge that is RP and care lawyer would under similar circumstances
Enforced by consequence of civil liability of Prof. neg.
30
duty of confidentiality
a lawyer shall not reveal any confidential information relating to representation of a client unless the client gives informed consent
Includes all info of any kind (when representing a client)
Can’t disclose confidential info unless client authorizes it or some other exception
CA duty of confidentiality is stricter than ABA
31
3 ways to terminate this duty:
Current client, former client or prospective client can waive confidentiality:
Confidential info: cease to be protected and become generally known
Death of a client ( not applicable in CA)
32
Duty of Candor:
Fully, honestly, and promptly provide client with all info w engagement- client requests or reasonably needs to make an informed decision
33
agency
One person (principal) auth. Another agent to act on behalf of the principal within the scope of the authority the principal confers on the agent
34
Agency Authority
statements, agreements, and conduct within scope of lawyer agent’s auth are binding on the client-principal, while those outside the scope of the lawyer agents authority are not
35
implied auth
expressed by circumstances “what a lawyer-agent reasonably understands is implied by or contained in the broader grant of actual authority that the principal-client has explicitly conferred” : often used to mean actual auth.
36
apparent auth
There is not implied or actual auth: the agent seems to have authority
EX: Opposing counsel didn’t know that the attorney couldn’t accept that sum bc of apparent auth (which would be outside the scope)(client may be bound by apparent auth)
37
ratification
can ratify the authority after the apparent auth.: Section 4.01
1. affirmance of a prior act done by another, is given effect as if done by an agent acting with actual authority
2. Ratifies an act by manifest assent affect legal relations OR conduct that justifies a reasonable assump. That the person so consents
3. Rat. doesn’t occur unless: act is ratifiable, person ratifying has capacity, is timely, ratification encompasses the act in its entirety
38
duty of competence
a lawyer shall provide representation to a client: requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation OR with the association of a lawyer established with competence in the field
39
diligence
Act with diligence & promptness in presenting a client
For Competence & diligence the consequences are professional discipline
40
Ineffective Assistance Per se:
defense attorney actions are so offensive that no competent lawyer could have assisted (this is rare) (strickland test isn’t needed in this case)
41
1.2 c
lawyer may limit the scope of representation if the limit is reasonable under the circumstances & client gives informed consent
42
1.16 B: 7 situations when a lawyer must voluntarily withdraw
1. w/o material adverse effect on interest of client
2. Client persist in course of action: lawyer believes clients actions to be criminal
3. Client has used lawyer’s service to perpetuate a crime
4. client insists on taking action & lawyer disagrees
5. Client fails substantially to fulfill an obligation & has given reasonable warning
6. Unreasonable financial burden on lawyer or difficult for client
7. Other withdrawal cause exits
43
4.1: truthful statements to 3rd party while representing client
Can’t Knowingly make material misreps. That would assist client in crime
1. Can’t knowingly make false statement of fact to 3rd person OR fail o disclose a material fact when saying would avoid assisting in criminal conduct by client ( unless 1.6)
44
4.2: can’t communicate directly w 3rd party
Covers: people who have retained their own counsel & type of relation outline w represent by counsel
Conseq: professional misconduct, professional negligence, evidentiary sanctions & agreement recissions
45
4.3
lawyer must not state or imply that they are disinterested( dealing w unrepresented people)
must make reasonable efforts to correct a misunderstanding
If a person’s interest could be in conflict w the attorney’s client: then you can’t give any legal advice
Att. must not request a person other than a client - refrain from voluntary info release to another party
46
1.0 f
knowledge means actual knowledge inferred from circumstances
47
1.1
an attorney shall have the learning, skills and mental, emotional and physical ability to represent a client (thoroughness and preparation reasonably necessary for the representation)
48
1.3 a
an organization has a lawyer doesn’t necessarily mean that ever organizational member is represented by that lawyer
49
1.3 a
an organization has a lawyer doesn’t necessarily mean that ever organizational member is represented by that lawyer
50
1.2d framework
1. Explain bounds of the law 2. List risks of violating the law in a way that the client is truly informed
Lawyer should investigate suspicions of illegal conduct of client & reject decisions of client conducting illegal activities : obligatioin on attorney to withdraw if client has implicated attorney in illegal conduct or attorney may withdrawl if client isn’t implicating attorney in illegal conduct : will have consequences of professional discipline & criminal & civil liability
51
1.3 f
lawyer must tell a corporate constituent that their client is the corp & lawyer knows that the constituents interests are adverse to the company
52
3.4
a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant info to another party unless:
The person is a relative or an employee or other agent of a client &
The lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information
53
3.5
A lawyer shall not seek to influence a judge or juror
by other official means prohibited by law
Communicate ex parte: with person during proceeding unless auth. To do so
Communicate w/ juror after discharge of jury if:
Communication is prohibited by law
Juror has made known a desire not to communicate or
Communication involves misrep, coercion OR
Engage in conduct intended to disrupt a tribunal
54
3.8 d: prosecutor in criminal case
Prosecutor shall make a timely disclosure to the defense of all evidence known that negates the guilt of the accused & with sentencing disclose to the defense the unprivileged mitigating info known to prosecutor : prosecutor relieved of responsibility
55
3.8 g: when a prosecutor knows of new evidence that a def most likely didn’t commit a crime: the prosecutor shall:
Promptly disclose the evidence &
Disclose to the def unless court delays auth & investigate if a def was convicted of a crime they didn’t commit
56
3.8 h- prosecutor knows of clear & convincing evidence:
Def was convicted of an offense that the def didn’t commit & the prosecutor shall seek to remedy the conviction
57
4.4 a- embarass or burden 3rd party
Lawyer shall not use means to have no substantial purpose other than to embarrass or burden a 3rd person to violate a person’s legal rights
Fact pattern: look to see if something triggers a disgust level response from a sophisticated legal observer
58
8.3 a: Reporting another lawyer’s wrongful conduct
Lawyer knows that the other lawyer committed a violation of PR that raises a substantial ? as to the lawyer’s honesty (moral turpitude) & shall inform prof. Auth.
59
8.3 c: Exceptions to a mandatory reporting requirement
Rule doesn’t require disclosure of info protected by Rule 1.6: info gained by a lawyer while participating in a lawyer assistance program
60
8.3 c: Exceptions to a mandatory reporting requirement
Rule doesn’t require disclosure of info protected by Rule 1.6: info gained by a lawyer while participating in a lawyer assistance program
61
8.4 g professional misconduct
Engage in conduct lawyer should reasonably know is harassment or discrimination on several basis: race, sex ect in conduct related to law
Doesn’t limit the ability of a lawyer to accept, decline or withdraw from rep.
Lawyer may engage in conduct undertaken to promote diversity & inclusion w/o violating this rule
62
8.4.1 Prohibit Discrim & Retaliation
Lawyer shall not: unlawfully harass & unlawfully discriminate against on basis of characteristics or retaliate: whether category is actual or perceived
Knowingly permit: failed to advocate for corrective action
Unlawful is determined by statutes
Retaliate is an adverse action against a person b/c person has participated in action conducted in discrim or harass.
63
8.5 disciplinary authority
for jurisdiction: to hold lawyers admitted to a jurisdiction and those practicing law in juris. accountable
64
Threats of criminal or quasi charges
1. Criminal matter related to the civil claim
2. Lawyer has well founded belief that civil claim and possible charges are warranted by law & facts
3. Lawyer doesn’t attempt to exert or assert improper influence over criminal process
65
why are lawyers threats allowed
b/c: lawyers make legitimate threats to pursue civil causes of action or remedies which the client has a substantial claim: negotiated resolution ( promises & consequences allowed)
66
conseq. for improper threats
Prof. Discipline: improper threats are frequently found to violate 4.4: b/c an effort to secure an unfair advantage in a civil manner - has no substantial purpose other to embarrass
Tort liability & court imposed sanctions
67
threats never allowed
To make criminal charges unrelated to disclose embarrassing or prejudicial facts not relevant to the civil dispute threats to engage in lawful conduct w/o actual intention on doing so
Threats based on improper influence of govern. Officials
68
CA distinction
No mandatory requirement report another lawyer or judge for violations that raise a substantial ? of a lawyer’s honesty & trustworthiness
CA doesn’t mandate attorneys reporting each other
Report if: been sued 3x for malpractice in the year, civilly liable for fraud or breach of fiduciary duty, sanction for more than 1,000$, charged w/ felony or convicted of serious crime, disciplined in another jurisd.
69
competence & diligence the conseq. are professional discipline: ineffective counsel per see
defense attorney actions are so offensive that no competent lawyer could have assisted (this is rare) (strickland test isn’t needed in this case)
70
6th Amendment: right to effective assistance (strickland case)
In all criminal defense cases: the counsel is to be competent with this law “ effective assistant” unless there is
1. Deficient performance: unconstitutionally ineffective - no reasonable attorney would have done this &
2. Deficiency is prejudicial to outcome : error prejudiced the defendant’s ability to receive a fair trial” burden of ineffective assistance is on the def.
Ineffective assistance per se: exception to strickland: when a def. Attorney actions are so offensive that no competent lawyer could have provided constitutional effective assistance
71
lawyer client relation
Agrees to take on the representation
Lawyer fails to make clear that she doesn’t want to undertake representation and the lawyer knows or should reasonably know that client is reasonably relying on the lawyer
72
vicarious criminal liability: aid & abbet
Specific intent to facilitate person’s commision of crime
Asst in crime and
Commission of underlying crim by aid & abbet
73
Vicarious Criminal Liability: Conspiracy
Agreement w people that 1 person or more will commit a crime or assist in planning
Commision of an overt act in conspiracy by conspirator
74
7.1: misleading statement
communication that truthfully reports a lawyer’s achievements on behalf of client may be misleading id it lead a reasonable person to form an unjustified expectation - for results that could be obtained for other clients based on similar situations
Unsubstantiated claim on lawyers services or an unsubstantiated comparison ( has to be presented with specificity)
75
1st ammen: protect attorney speech
If its an advertisement then it is protected: immediate scrutiny make sure it isn’t false or misleading
Must show it was adopted in substantial state interest
Direct advances- government interest &
No more extensive than necessary
76
Truthful statements that are objectively misleading( look closer at this)
Misleading if it omits a fact necessary to make a lawyer’s communication - considered as a whole not materially misleading : substantial likelihood that a RP would make a conclusion on the lawyer’s services
77
CA restriction on adv.
Contingency fee: prohibits stating no fee w/o recovery unless communication explains whether or not client is liable for litigation cosys
Restricts Adv contain: guarantee of case outcome. Allusion to quick cash settlement, requirement of disclosure of actors , impersonation of an att. Or contingency fee
78
7.3 Solicitation
Defines solicitation as a communication initiated by a lawyer that is directed to a specific person & the lawyer knows that person needs legal services in that area & offers to provide legal services
79
solicitation restrictions
Lawyer shall not solicit professional employment by a live person to person contact when a significant motive is for the lawyer’s financial gain UNLESS contact is
Lawyer
Person who family ect has personal relationship with lawyer
Person who routinely uses business for specific legal services
Shall not solicit professional employment IF
Target made known a lawyer desires not to be solicited by a lawyer OR
Solicitation involves a coercion or harassment
80
solicitation restrictions
Lawyer shall not solicit professional employment by a live person to person contact when a significant motive is for the lawyer’s financial gain UNLESS contact is
Lawyer
Person who family ect has personal relationship with lawyer
Person who routinely uses business for specific legal services
Shall not solicit professional employment IF
Target made known a lawyer desires not to be solicited by a lawyer OR
Solicitation involves a coercion or harassment
81
7.1
a lawyer shall not make a false or misleading communication about the lawyer or services- material misrepresentation of fact or omits a fact necessary
Scope: all advertisements/ communications of lawyer’s services
Ex: having an attorney on your letterhead who is no longer there anymore, look at puffing, former client testimonials, claiming of specialization, statement that is true but is likely misleading
82
specific rules for lawyer advertisements
Shall not compensate or promise anything of value to a person recommending the lawyer’s services except a lawyer may:
Pay a reasonable cost of adv.
Pay charges of legal service or qualified lawyer referral service
Pay for a law practice
Refer clients to another lawyer - pursuant to an agreement not prohibited by law to refer clients IF
Reciprocal referral agreement is not exclusive &
Client is informed of the existence and nature of the agreement AND
Give gifts as appreciated - not expected to be compensation for lawyer services ( if paid by referral)
Shall not state that a lawyer is a certified specialist in a particular area UNLESS
Lawyer has been certified and approved
Name of the certifying organization is clearly identified
- any communication must include the lawyers name and contact info: they are responsible for the content
83
1.5: shall not make an agreement for unreasonable fees
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.
84
1.0c (competence)
1.0(c): firm denotes a lawyer which is authorized to practice law OR lawyers employed in legal services org OR the legal department of a corporation
85
1.0 k: Ethical Screens
Isolation of a lawyer from any participation in a matter through timely imposition procedures within a firm that are reasonably adequate under the circumstances to protect info.
86
1.1
an attorney shall have the learning, skills and mental, emotional and physical ability to represent a client (thoroughness and preparation reasonably necessary for the representation)
87
1.10: imputation to firm & ethics
Lawyer in firm, really none of the, shall not knowingly represent a client when any of them practicing alone would be prohibited from doing so UNLESS
Prohibition is based on a personal interest of the disqualified lawyer and doesn’t present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm OR
Arises out of the disqualified association with a prior firm AND disqualified lawyer is timely screened from any participated and is apportioned no part of the fee, written notice is prompt describing the compliance with the rule, description of screening procedures and certification of compliance of rules & screening procedures
88
1.10(a): Imputation
lawyer in practice has conflict of interest: then every lawyer in that org as that lawyer will have the same conflict
Exceptions: rebuttable presumption( if rebutted then the conflict of interest is confined to the lawyers within the org. Who are personally disqualified- whoever is involved : those who aren’t personally disqualified may proceed with the conflicted engagement w/o affecting the client’s consent
Address circumstances of conflict of interest: based on exposure of confidential info: none is effective in addressing a concurrent conflict of interest
89
1.10(b)
firm has terminated an asoociated, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer and current rep. By the firm UNLESS
The matter is same or substantial AND
Any remaining lawyer in the firm has confidential info that is material to the matter
90
1.13(a): representing a corporation
an organization ( LLC, non profits or C-Corps) has a lawyer doesn’t necessarily mean that ever organizational member is represented by that lawyer: a lawyer representing a corporation generally owes duties to the corporation not individual constiutents (not the ceo, board of directors or any individuals)
91
1.13(b): Reporting UP
if a lawyer for an organization knows that an officer, employee or other person with the org who is engaged in action, intends to act or refuses to act in a manner related to the representation and that is a violation of the legal obligation to the organization or a violation of law that reasonable might be imputed to the organization and that is likely to result in substantial injury to the org THEN the lawyer shall proceed as necessary in the interest of the organization
92
1.13(c): Reporting Out
except in d: if despite the lawyers efforts with (b), the highest authority that can act on behalf of the organization insist upon or fails to address in a timely manner or a refusal to act is a clear violation of law and the lawyer believes the violation is reasonably certain to result in substantial injury ti the org then the lawyer may reveal info relating to the representation whether or not 1.6 permits such disclosure but only if and to the extent the lawyer reasonable believes necessary to prevent such injury to the organization
93
1.13(d): no reporting out exception
shall not apply with respect to info 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 against a claim arising out of an alleged violation of law
94
1.13(e): No reporting out exception
lawyer reasonably believes that he has been discharged because of the lawyers actions taken pursuant to the paragraphs of b & c OR who withdraws under circumstances that require or permit the lawyer to take action under either of those: shall process as she reasonably believes necessary to assure that the organization’s highest authority is informed of the lawyer’s discharge or withdrawal
95
1.13(f): no reporting out exception
in dealing with an organization's directors ect, a lawyer shall explain the identity of the client when the lawyer knows or reasonably should know that the orgs. Interest are adverse to the unrepresented constituents: attorney must clarify their role immediately to avoid confusion ( upjohn warning: required by a corporate att when involved in litigation or conducting an internal investigation)
96
1.13(g) join representation
lawyer representing an org may also represent any of its constituents as long as there isn’t a conflict of interest: subject to 1.7 if the orgs. Consent to the dial representation is required by 1.7: consent shall be given by an appropriate official of the org other than the individual who is to be represented ( has to come from someone other than the constituent being represented by the attorney)
97
1.15: safeguard accounting
Safeguard: a lawyer should golf property of others with care, all property of 3rd persons must be kept separate from the lawyer’s business and personal property ( you have to deposit other people;’s $ in trust account that you maintain)
Must have to put tangible property in safety deposit boxes
May deposit the lawyers own funds in a client trust account for the sole purpose of paying bank service charges but only in the amount necessary
Complete records must be preserved for 5 years after termination of representation( for account funds)
When receiving funds must promptly notify a 3rd person or client unless permitted by client
Lawyer shall keep the property separate by the lawyer until the dispute is resolved
Lawyer can hold on to disputed funds, if they aren’t disputed then they have to let those go should suggest means for resolution
98
1.2(c): involvement in client wrongdoing
lawyer may limit the scope of representation if the limit is reasonable under the circumstances & client gives informed consent
99
1.2(d)
lawyer shall not counsel a client to engage in conduct that a lawyer knows is criminal
( must have actual knowledge)( duty to investigate)
Exceptions: lawyer may discuss legal conseq. Of any proposed course of conduct & a lawyer may in good faith effort to determine if a statute or regulation is valid
Must also look @ interpret of statute - involve disobedience of statute
100
1.3(f)
lawyer must tell a corporate constituent that their client is the corp & lawyer knows that the constituents interests are adverse to the company
101
1.3(f)
lawyer must tell a corporate constituent that their client is the corp & lawyer knows that the constituents interests are adverse to the company
102
1.16(c): withdrawal
Representation is before the court and attorney must request permissions from judge before being terminated as representation
Court denies lawyer request the lawyer must remain counsel even if good cause for termination
Limitations: lawyer must comply w applicable law for notice or permission when termination rep. & good cause for terminating representation
103
1.16(d)
Upon termination a lawyer shall take steps to reasonable protect client’s interests
104
1.18(a): duty of confidentiality
a person who consults with a lawyer about the possibility of forming a lawyer- client relation. To prospective client
105
1.18(b)
no client-lawyer relation. Lawyer learned of info from a prospective client shall not reveal info except 1.9 would permit
106
1.18(c): former client applies to prospective clients
shall not represent a client with interest materially adverse to a prospective client in a same or substantially related matter: lawyer received info from prospective client that could be significantly harmful EXCEPT:
If a lawyer is disqualified: no lawyer in a firm is associated - undertake rep.
107
1.18(d): former client applies to prospective clients
lawyer has received disqualifying info permissible if: both affected & prospective client have given informed consent confirmed in writing OR the lawyer received info : took reasonable measures to avoid exposure and is timely screened
108
1.5
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.
109
1.5(b): mandatory duty
To inform clients of both the scope of representation and the basis of rate of fee and expenses
Duty to inform any changes in the fee: must do it within a reasonable time after representation: exception: when lawyer regularly charges client on same rate: inform in writing
110
1.5(c): continguency fee
May be contingent on the outcome of the matter except in a matter in which it is prohibited
Shall provide the client with a written statement with the outcome and if there is recovery: show remittance to client
111
1.5(d): contingency fee prohibited
Shall not enter into an agreement for charge
In domestic relations: securing divorce, alimony ect
In representing client in a criminal case
112
1.5(e): sharing fees
A lawyer may share fees with another attorney in the law firm: exception: can’t share w attorney who stopped working due to a conflict
Can’t share w attorney who is outside of the firm: division is in proportion, client agrees to the arrangement, total fee is reasonable
113
1.6(a): duty of loyalty to current clients
a lawyer shall not reveal information relating to the representation of a client unless client gives informed consent (exceptions 1.0(e) , consent implied auth., 1.6(b))
he A/C relationship is formed when an individual conveys to a lawyer their intent that the lawyer provide them with legal services; AND either:
The lawyer agrees to represent; OR,
The lawyer fails to say no/fails to express lack of consent; AND
The lawyer knows or reasonably should have known the client reasonably relies on the lawyer to provide the services.
Lawyering: Document everything in writing to avoid ambiguity in the relationship (e.g. emails, engagement letters, disengagement letters, declination letters, etc.) CYL Letter (contact your lawyer letter)
Also remind prospective client of SOL when stating that you will NOT represent.
If case concluded Disengagement letter
114
1.6(b): duty to current clients
A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary ( duty of confidentiality) ( death 1.6(b 1-2), financial loss 1.6(b)(2-3), attorney defense 1.6(b)(5), compliance 1.6(b)(6), ethics 1.6 (b)(4), law firm conflict 1.6(b)(7)
lawyer may reveal info if they reasonably believe necessary:(1) to prevent reasonably certain death, (2)prevent client from committing crime,(3) prevent substantial injury to financial interests
establish claim on behalf of attorney : controversy between attorney and client Or respond to the allegations in any proceeding
115
exceptions to 1.6(b): duty to current client
Exceptions to reveal client information:
Consent of the client after consultation
Informed consent OR attorney also has implied consent to reveal what is necessary to render his legal services
Example: Your client has synthesized a new steroid and has hired you to get a patent on the drug. You may reveal the client’s invention to the Patent Office because it is necessary to render your legal service
116
1.7: personal interests/ concurrent conflicts
a lawyer shall not represent a client if it is concurrent conflict of interest: rep of 1 client will be directly adverse of another client, significant risk.. Rep of one or more client will be materially limited ( obtain written consent)
Prohibits lawyer from undertaking rep is a lawyer’s own personal : financial inters will materially limit
Attorneys are prohibited from any concurrent conflict of interest
A concurrent conflict of interest exists if the rep of one client will be directly adverse to another client OR significant risk the rep of one or more client will be materially limited
A lawyer may represent a client if they reasonably believe they will be able to provide competent & diligent representation
117
1.7(b) & B(3)
if conflict is consented then it must be in writing & signed
involved the assertion of a claim by one client against another client represented by the lawyer in the same proceeding before a tribunal
Lawyer should be able to adopt reasonable procedures, ignorance will not excuse a lawyer’s violation of this Rule
118
1.8(a): fiduciary Duty: personal interest conflict between atty & client
a lawyer shall into enter into a business transaction w a client: acquire a ownership in adverse to the client unless: 1. Trans is fair and reasonable & fully disclosed 2. Client is advised in writing, reasonable opp. To seek advice of indep. Legal counsel 3. Client gives informed consent in writing & signed by the client (what’s not covered: basic fee agreement, agreement w/ lawyer to take a security interest for payments & fees (contingent fee), ordinary commercial trans.)
119
1.8(a) exception
terms are fair & reasonable to client - fully disclosed & transmitted in writing that can be understood by client ( in writing, reasonable opportunity to seek advice of indep. counsel)
120
1.8(c): personal interest conflict w atty & client: fidicary
a lawyer shall not solicit any substantial gift from a client: prepare on behalf of a client unless the gift is related to them
121
1.8(d) fiduciary Duty: personal interest conflict between atty & client
the prohibition on acquiring literary or media rights related to the engagement while the engagement is still pending (not in CA). lawyer shall not make or negotiate an agreement giving the lawyer literary in substantial part on information
122
1.8(e) fiduciary Duty: personal interest conflict between atty & client
a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except:
Lawyer may advance court courts: contingent on outcome of the matter
Representing an indigent client may pay court costs on behalf of client
Pro bono client: may provide modest gifts to the client for food ect : may not promise availability of gifts prior to retention: can’t seek reimbursement from client, can’t advertise willingness to provide gifts to future clients
General financial assistance to client is prohibited
123
1.8(e) fiduciary Duty: personal interest conflict between atty & client
a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation except:
Lawyer may advance court courts: contingent on outcome of the matter
Representing an indigent client may pay court costs on behalf of client
Pro bono client: may provide modest gifts to the client for food ect : may not promise availability of gifts prior to retention: can’t seek reimbursement from client, can’t advertise willingness to provide gifts to future clients
General financial assistance to client is prohibited
124
1.8(e) indigent client fiduciary Duty: personal interest conflict between atty & client
Indigent client may pay court courts and expenses of litigation on behalf of client & probono through non profit legal services or public interest org & program may provide modest gifts to the client for food, rent, ect: lawyer may not promise the availability of gifts prior to retention: may not seek/ accept reimbursement from client
125
1.8(g) fiduciary Duty: personal interest conflict between atty & client
a lawyer who represents 2 or more clients shall not participate in make an aggregate settlement or in a criminal case as to the guilty pleas unless each client gives informed consent in writing signed by the client : lawyer disclosure shall include the existence of claims and pleas involved and participation of each person
126
1.8(h) fiduciary Duty: personal interest conflict between atty & client
a lawyer shall not make an agreement limiting the lawyers liability to client for malpractice unless the client is independently represented & settle a claim for liability with an unrepresented client unless advised in writing and given opportunity to seek advice
127
1.8(i) fiduciary Duty: personal interest conflict between atty & client
a lawyer shall not acquire proprietary interest in the cause of action of litigation except the lawyer may: acquire a lien authorized by law and contract w client for reasonable fee, contract w client for reasonable contingent fee in civil cases (CA doesn’t adopt this rule)( CA goes with 1.8(a)
128
1.8(i) exception
if auth. By law to acquire a lien to pay lawyer’s fees and contract for reasonable contingency fee
129
1.9(a) fiduciary Duty: personal interest conflict between atty & client
a lawyer who has formerly represented a client in a matter shall not represent another in the same substantially related matter: person’s interests are materially adverse to the interests of the former client unless consent in writing
130
1.9(b) fiduciary Duty: personal interest conflict between atty & client
shall not knowingly represent a person in the same related matter in which a firm with which the lawyer formerly has associated : interests are materially adverse but has the exception of consent in writing
131
1.9(c)
a lawyer who formerly represented the client in a matter shall not: use info relating to the representation to disadv. The former client OR reveal information relating to the representation except as these rules would permit or require with respect to a client
132
3.1: frivalous claims
A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein unless there is a basis in law for doing so that is not frivolous
Frivolous is an argument not based on law
Rule goes on to give example of what is not frivolous includes good faith argument for an extension, modification or reversal of existing law
Not frivolous for criminal defendant to mount a defense solely on demanding that every element of the case be established
133
3.3 frivalous claims
A lawyer shall no knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact previously made to the tribunal by the lawyer
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
(lawyer doesn’t have to correct all witness’ess testimony: EX: adverse witness testimony
134
3.3(a) candor towards a tribunal
a lawyer shall not knowingly:
1.make a false statement of fact to a tribunal or fail to correct a false statement or previously made
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 has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures
135
3.3 a candor towards a tribunal
a lawyer must take remedial measures to correct falsehood when the lawyer offered material evidence that the lawyer comes to know is false
Remedial measures: steps in order ( must not violate duty of confidentiality)
1. Urge witness to correct his or her false testimony
2. Motion that the testimony is stricken and/ or withdrawn from rep. (if you do then it HAS to be the minimum amount to be stricken)
3. Disclose confidential information to the court to the extent necessary to correct the falsity (can put motion in court to amend the complaint) ( this isn’t in CA: remedial measures must not violate the duty of confidentiality)
136
3.3(b)(c)(d): candor towards a tribunal
B: a lawyer who represents a client in an adjunctive proceeding and who knows that a person intends to engage in engaging or has engaged in criminal or fraud conduct: related to the proceeding shall take reasonable remedial measures : if necessary disclosure to the tribunal
C: Duties in A & B: continue to the conclusion of proceeding and apple even if compliance requires disclosure of information : otherwise protected by 1.6( NOT in CA : no 1.6 exception for 3.3(a)
D: in an ex parte proceeding (other side isn’t there: TRO): lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make informed decisions whether or nor the facts are diverse ( lawyer is held to higher standard bc other party isn’t there designed to protect party that isn’t present)
(Ordinarily an advocate has limited responsibility of presenting one side of the matters that a tribunal should consider )
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3.4 a lawyer shall not request a person other than a client to refrain from voluntarily giving relevant info to another party unless/ underep people.
The person is a relative or an employee or other agent of a client &
The lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information
138
3.4(a); potential evidentiary value
a lawyer shall not unlawfully obstruct another party’s access to evidence or alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do this act
Spoilation is a term commonly used to describe unlawful destruction or alteration of material that could have evidentiary or investigative value ( opposing party can obtain this through a subpoena.
May permit a lawyer to take temporary possession of physical evidence: for limited exam that will not alter or destroy material evidence
139
3.4(b)
falsify evidence, counsel a witness to testify falsely or offer an inducement to a witness that is prohibited by law
140
3.4(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
141
3.4(d)
pretrial procedure: make frivolous discovery request or fail to make diligent effort to comply with a legal proper discovery request by an opposing party
142
3.4(e): prevents a lawyer from doing several things in trial
in trial, a lawyer shall not allude to any matter that the lawyer doesn’t reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of the facts in in issue except when testifying as a witness or state a personal opinion
EX: when you tell a witness that they are being honest : giving your personal opinion
Alluding to any matter that a lawyer doesn’t reasonably believe is relevant or supported in admissible evidence
Asserting personal knowledge of facts in issue except when testifying as a witness or
State a personal opinion as to he justness of the cause
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3.4(f): retaining & handling evidence (atty forbidden in unlawful obstruction of evidence)
forbids from requesting someone other than client from giving relevant information voluntarily to another party
Person is a relative or employee or other agent of client AND
Lawyer Reasonably believes the person’s interest will not be adversely affected by refraining from giving such info
144
3.5 : a lawyer shall not seek to influence a judge or juror
Shall not seek to influence a judge or juror by means prohibited by law
B: Communicate ex parte: with person during proceeding unless authorized To do so by law
C: Communicate w/ juror after discharge of jury if:
Communication is prohibited by law
Juror has made known a desire not to communicate or
Communication involves misrep, coercion OR
Engage in conduct intended to disrupt a tribunal
D: prohibits conduct intended to disrupt a tribunal (broadly defined under 1.0 & depositions)
Intent that motivates counsel’s conduct matters but behavior that is actually disruptive is likely to be interpreted as having been intended to disrupt
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3.6: trial publicity
A: a lawyer who is participating in an investigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably knows will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding
B:you may always communicate to the public
A lawyer may state
A claim except when prohibited by the law
Information contained in a public record
An investigation of a matter in progress
Scheduling or result of any step in litigation
A request for assistance obtaining &
Warning a danger concerning the behavior of a person involved: reason to believe that there exists the likelihood of substantial harm
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3.6(b): trial publicity lawyer communication
Additional permissive ways of communication
Identity, residence, ect of accused
If the accused hasn’t been apprehended information necessary to aid in apprehension of that person
Fact, time, place of arrest &&
Identity of investigating and arresting officers
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3.6: trial publicity : C
notwithstanding 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 lawyers client : shall be limited as necessary to mitigate the recent adverse publicity
148
3.6(d): trial publicity
no lawyer associated in a firm or govern. Agency with a lawyer subject to paragraph (a) shall make a statement prohibited by paragraph a
149
3.7(a): trial publicity
a lawyer shall not act as advocate at a trial in which a lawyer is likely to be a necessary witness unless
The testimony related to an uncontested issue
The testimony relates to the nature and value of legal services rendered in the case OR
Disqualification of a lawyer would work substantial hardship on client
150
3.7(b): trial publicity
lawyer may act as advocate in a trial in which another lawywer in the firm is likely to be called as a witness unless precluded from doing so by rule 1.7 & 1.9
151
3.8(d): prosecutor in criminal case
Prosecutor shall make a timely disclosure to the defense of all evidence known that negates the guilt of the accused & with sentencing disclose to the defense the unprivileged mitigating info known to prosecutor : prosecutor relieved of responsibility
152
3.8(d): prosecutor in criminal case
Prosecutor shall make a timely disclosure to the defense of all evidence known that negates the guilt of the accused & with sentencing disclose to the defense the unprivileged mitigating info known to prosecutor : prosecutor relieved of responsibility
153
3.6(g); trial publicity : when a prosecutor knows of new evidence that a def most likely didn’t commit a crime: the prosecutor shall:
Promptly disclose the evidence &
Disclose to the def unless court delays auth & investigate if a def was convicted of a crime they didn’t commit
154
3.6(h) trial publicity: prosecutor knows. of clear & convincing evidence
Def was convicted of an offense that the def didn’t commit & the prosecutor shall seek to remedy the conviction
155
4.1: truthful statements to 3rd party while representing client
Can’t Knowingly make material misreps. That would assist client in crime
1. Can’t knowingly make false statement of fact to 3rd person OR fail o disclose a material fact when saying would avoid assisting in criminal conduct by client ( unless 1.6)
156
4.2: can’t communicate directly w 3rd party/ Duties to People who have their own lawyers
about matter unless consent from Att.
Covers: people who have retained their own counsel & type of relation outline w represent by counsel
Conseq: professional misconduct, professional negligence, evidentiary sanctions & agreement recissions
Corporations: prohibits communication w/o consent for 3 types
Supervises or directs
Regularly consults w the organizations lawyer
Has auth. To obligate w respect to a matterL for civil or criminal liability
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4.3 : Duties to unrepresented people
lawyer must not state or imply that they are disinterested (dealing w unrepresented people)
must make reasonable efforts to correct a misunderstanding
If a person’s interest could be in conflict w the attorney’s client: then you can’t give any legal advice
Att. must not request a person other than a client - refrain from voluntary info release to another party
Attorney knows or should know that unrepresented people are confused about role and attorney must clarify their role
158
4.4(a): Evidence Ethical Rules: embarrass or burden 3rd party / Threaten to Report
Gathering & handling evidence: lawful investigations
Lawyer shall not use means to have no substantial purpose other than to embarrass or burden a 3rd person to violate a person’s legal rights
Fact pattern: look to see if something triggers a disgust level response from a sophisticated legal observer
159
4.4(b) Mistaken ESI: Inadvertently disclosed docs
4.4(b): a lawyer who receives a document or electronic info relating to the representation of a lawyer’s client knows or should know that the inform was inadvertently sent to them (shall promptly notify the sender) & related to the representation then they must promptly notify the sending attorney
When received accidental ESI: requires the lawyer to promptly notify the sender in order to permit that person to take protective measures: doesn’t address the necessity of any additional steps
Under CA: lawyer knows or should know that the information was inadvertently sent to them and knows or should know that the information is privileged or subject to the work doctrin THEN they must promptly notify the sending attorney and refrain from examining the document any more than necessary to determine it’s privilege or protected under attorney work product
160
5.1(a) cognitive biases
a partner in a law firm with other lawyers possess comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measure giving reasonable assurances that all lawyers in the firm conform to the rules of PC ( can be in house counsel, entity of an organization)
161
5.1(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 PC
162
5.1(c) vicarious liability
a lawyer shall be responsible for another lawyer’s violation of rules of PC if
The lawyer orders or with knowledge of the specific conduct ratifies the conduct involved or
The lawyer is a partner or has comparable managerial auth in the law firm or has direct supervisory auth over the other lawyer and knows of the conduct at the time when its consequences can be avoided or mitigated but fails to take remedial action (if you don’t know at the time then you are not vicariously liable)
163
5.2: Responsibilities of a Subordinate Lawyer
A lawyer is bound by the rule of PC
notwithstanding that the lawyer acted at a direction of another person
164
5.2(b) Subordinate lawyer doesn’t violate rules of PC
if that lawyer acts in accordance with the supervisory lawyer’s reasonable resolution of an arguable ? of professional duty (objective standard) ( lawyer is not always responsible for the actions of the subordinates, especially if they don’t know that they are negligent)
165
5.3(A) Non-Lawyer retained with a Lawyer (Firm duty to Non-Lawyer: Clerks/ Paralegals)
a partner who possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that the person’s conduct is compatible with the professional obligation
166
5.3(b) Non-Lawyer retained with a Lawyer (Firm duty to Non-Lawyer: Clerks/ Paralegals)
a lawyer with direct supervisory auth over the non lawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations and
167
5.3(c) Non-Lawyer retained with a Lawyer (Firm duty to Non-Lawyer: Clerks/ Paralegals)
a lawyer shall be responsible for conduct of a person that would be a violation of the rule of PC if engaged in by a lawyer IF:
The lawyer orders or with the knowledge of specific conduct ratifies the conduct involved OR
The lawyer is a partner with comparable managerial authority in a law firm or has direct supervisory auth and knows of the conduct at the time when its consequences can be avoided to mitigate but fails to take reasonable remedial action
168
5.6 Restrictions on right to Practice ( after termination) Agree to Restrict
Prohibits attorney from enacting non compete clauses as part of their employment UNLESS 1. Concerns benefit upon retirement OR 2. part of a term of sale of law
B: prohibits attorneys from participating in agreement of restriction on a lawyers right to practice ( part of settlement controversy)
Consequences: discipline, civil liability, ect
169
7.1 Offering to Restrict your future practice / Advertisement
a lawyer shall not make a false or misleading communication about the lawyer or services- material misrepresentation of fact or omits a fact necessary
Scope: all advertisements/ communications of lawyer’s services
Ex: having an attorney on your letterhead who is no longer there anymore, look at puffing, former client testimonials, claiming of specialization, statement that is true but is likely misleading
170
7.2 Specific Rules for Lawyer Advertisements
Shall not compensate or promise anything of value to a person recommending the lawyer’s services except a lawyer may:
Pay a reasonable cost of adv.
Pay charges of legal service or qualified lawyer referral service
Pay for a law practice
Refer clients to another lawyer - pursuant to an agreement not prohibited by law to refer clients IF
Reciprocal referral agreement is not exclusive &
Client is informed of the existence and nature of the agreement AND
Give gifts as appreciated - not expected to be compensation for lawyer services ( if paid by referral)
Shall not state that a lawyer is a certified specialist in a particular area UNLESS
Lawyer has been certified and approved
Name of the certifying organization is clearly identified
- any communication must include the lawyers name and contact info: they are responsible for the content
171
7.3(a) add rules for solicitation
Defines solicitation as a communication initiated by a lawyer that is directed to a specific person & the lawyer knows that person needs legal services in that area & offers to provide legal services
172
7.3(b) add rules for solicitation: restrictions
Lawyer shall not solicit professional employment by a live person to person contact when a significant motive is for the lawyer’s financial gain UNLESS contact is
Lawyer
Person who family ect has personal relationship with lawyer
Person who routinely uses business for specific legal services
Shall not solicit professional employment IF
Target made known a lawyer desires not to be solicited by a lawyer OR
Solicitation involves a coercion or harassment
173
7.3 solicitation
C: A lawyer shall not solicit professional employment even when not otherwise permitted 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: doesn’t prohibit communication authorized by law
E: a lawyer may participate in a prepaid legal service plan
174
8.1 applying for bar admission
Application for the bar shall not: knowingly make a false statement of material fact or fail to disclose a fact or knowingly fail to respond to lawful demand of info
Exception: doesn’t require disclosure of info otherwise protected in Rule 1.6
8.2(A).: provides that a lawyer must not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualification or integrity of a judge
( a lawyer may stand firm against abuse by a judge but should avoid reciprocation)
175
8.3(a): Reporting another lawyer’s wrongful conduct
Lawyer knows that the other lawyer committed a violation of PR that raises a substantial ? as to the lawyer’s honesty (moral turpitude) & shall inform prof. Auth.
8.3(c): Exceptions to a mandatory reporting requirement
Rule doesn’t require disclosure of info protected by Rule 1.6: info gained by a lawyer while participating in a lawyer assistance program
176
8.4 Attorneys: Officers of the Court: What do Lawyers Do/ Regulating Conduct
professional misconduct and who can be subject to professional discipline : to engage in conduct that is prejudicial to the administration of justice
8.4(a): Lawyer violated the rules of professional conduct; no puppetry rule
or knowingly assists someone to violate rules, The uses of acts of another person to commit the violation then they have committed professional misconduct( can’t get someone to do something you can’t do yourself)
177
8.4 C, D, E, G
8.4 ©: can’t engage in conduct that involves fraud ect
8.4 (d): engaging in prejudicial conduct
8.4(e): threats based on an effort to improperly influence or suggest ability to improper influence govern. Officials & threats to inflict violence in any other illegal conduct
8.4 g: professional misconduct:
Engage in conduct lawyer should reasonably know is harassment or discrimination on several basis: race, sex ect in conduct related to law
Doesn’t limit the ability of a lawyer to accept, decline or withdraw from rep.
Lawyer may engage in conduct undertaken to promote diversity & inclusion w/o violating this rule
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8.4.1 prohibit discrim & retaliation
Lawyer shall not: unlawfully harass & unlawfully discriminate against on basis of characteristics or retaliate: whether category is actual or perceived
Knowingly permit: failed to advocate for corrective action
Unlawful is determined by statutes
Retaliate is an adverse action against a person b/c person has participated in action conducted in discrim or harass.
179
8.5(a):Disciplinary authority
for jurisdiction: to hold lawyers admitted to a jurisdiction and those practicing law in juris. Accountable
180
Threats of criminal or quasi charges (improper threats)
Lawyer may threaten to lodge criminal charges:
1. Criminal matter related to the civil claim
2. Lawyer has well founded belief that civil claim and possible charges are warranted by law & facts
3. Lawyer doesn’t attempt to exert or assert improper influence over criminal process
Allowed b/c: lawyers make make legitimate threats to pursue civil causes of action or remedies which the client has a substantial claim: negotiated resolution ( promises & consequences allowed)
181
conseq. for improper threats
Prof. Discipline: improper threats are frequently found to violate 4.4: b/c an effort to secure an unfair advantage in a civil manner - has no substantial purpose other to embarrass
Tort liability & court imposed sanctions
182
threats never allowed
To make criminal charges unrelated to disclose embarrassing or prejudicial facts not relevant to the civil dispute threats to engage in lawful conduct w/o actual intention on doing so
Threats based on improper influence of govern. Officials
183
retainers
Retainers
Lawyer may require advance payment: obligated to return any unearned portion
True Retainer: WRITING SIGNED BY CLIENT
Retainer as security:retainer remains the clients $, used to pay future fees
Retainer: lawyer may require an advance payment of a fee: obligated to return unearned portion
Lawyer may accept property in payment for services : as long as it doesn’t involve acquisition of interest to the cause of action
184
types of fees
Hourly: scalable if the case gets more, flat rate ; incentive for a lawyer to be efficient but if the $ runs out then a lawyer is less incentivized, hybrid, success fee (less common), contingency fee( must be in writing & signed by the client)
185
share fees w/ non lawyer
Generally prohibited but there are 3 exceptions
Payment to the lawyers estate for period of time as a death
Non lawyers are beneficiaries
Sharing court awarded fees with a non profit organization that recommended the lawyer’s employment in the manner
186
1st ammendment in protecting atty speech
If its an advertisement then it is protected: immediate scrutiny make sure it isn’t false or misleading
Must show it was adopted in substantial state interest
Direct advances- government interest &
No more extensive than necessary
187
Truthful statements that are objectively misleading( look closer at this)
Misleading if it omits a fact necessary to make a lawyer’s communication - considered as a whole not materially misleading : substantial likelihood that a RP would make a conclusion on the lawyer’s services
188
accounts
Trust account:
Clients $
Interest in
Operational Account:
Law firm bank account
Pay employees or expenses
Can’t contain clients $ ( can only transfer clients $)
189
Look @ conflicts between personal interest of the lawyer and the client
Conseq: some say you can’t move forward civil conseq, court disqualification order, lawyer can be subject to unjust enrichment is the conflict is a defense to the lawyer’s claim for fees
Conflicts based on conflicting duties of loyalty that a lawyer owes to more than one client
Conflicts between personal interest of the lawyer & interest of a client
Conflicts between the client’s duty to the lawyer and duty to the legal system
Based on what a lawyer has learned in confidence & may be tempted to share
Conseq: mere existence of a conflict w/o any actual harm can trigger professional conseq.
190
analytical framework for conflicts of interest
Identify everyone’s interests
Identify the conflict of interest & rule governing
Conflict waivable or unwaivable : by 1.7 a lawyer may represent a client if they reasonably believe they will be able to provide competent and diligent representation: not prohibited by law & doesn’t involve an assertion of a claim by one client against another
If conflict is waivable what consent is needed: informed, written
191
concurrent client
A lawyer shall not represent anyone adverse to current client but may represent clients who sue former clients
192
indirect conflicts
If 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
1st type of indirect conflict
Look @ risk where a case is pending
Issue is substantive OR PROCEDURAL: look to see if it will create precedent against the other
Temporal relationship
Significant issue to the immediate & long term interests
Clients reasonable expectation of retaining the lawyer
193
resolving concurrent client conflict
Clearly identify client
Determine whether the conflict exists
See if rep can be undertaken despite existence of a conflict
If so, consult w clients affected & obtain their informed consent in writing
Lawyer must abstain or withdraw from the conflicted engagement
194
analytical framework for resolving former client conflict
Determine new matter is same or substantially related to an old matter ( substantially related test)
Clearly identify former client & new client interest
See if a conflict exists : there is a conflict if the interest is materially adverse to the former clients interest : if the former client was from another firm: see if the lawyer was privy to confidential information that’s material
Decide if the representation may be undertaken despite the existence of a conflict
If so did the lawyer obtain the form clients informed consent: confirmed in writing
If not waivable: lawyer must abstain or withdraw
If waivable: but lawyer didn’t obtain consent: lawyer may be disqualified
195
directly adverse conflict
Representation of one client will be direct adverse to another client OR there is a significant risk that the rep of one or more clients will be materially limited
196
future client conflicts
Join rep: one lawyer represents more than one client in the same engagement
If there is a reasonable risk in the future that these 2 clients will have a conflict then the attorney must be informed
197
former client rule & disqualification
Former Client Rule
Protects lawyer’s former client by forbidding a lawyer from putting themselves where they could use their former client’s confidential info against them
Disqualification
Lawyer violate 1.9 : opposing counsel can motion to have the attorney disqualifies from a pending case : court will use the substantial relationship test to see if a lawyer should be disqualified
198
Imputation rule 1.10(a)
lawyer in practice has conflict of interest: then every lawyer in that org as that lawyer will have the same conflict
Exceptions: rebuttable presumption( if rebutted then the conflict of interest is confined to the lawyers within the org. Who are personally disqualified- whoever is involved : those who aren’t personally disqualified may proceed with the conflicted engagement w/o affecting the client’s consent
Address circumstances of conflict of interest: based on exposure of confidential info: none is effective in addressing a concurrent conflict of interest
199
personal interest conflict that aren't conclusively imputed
Sex w a client
Individual lawyers personal interest or connected don’t create a significant risk of material limitation
200
conflict check
lawfirms must create reasonable procedure to determine whether a conflict of interest exists: should be done before engagement begins
Required to check to see if a substantially related confidential info of former or prospective client is at risk OR whether someone to whom the prospective client is adverse to your current client
201
4 types of conflict not waived
Rep prohibited by law: 1.7 b
Personal interest conflict ask to waive: 1.8
Rep involves an assertion by one client against another: 1.7 b
Unreasonable to believe that they will be able to provide competent & diligent rep: 1.7 (b)(1)
If not waivable
Abstention: attorney must decline representation that would be a violation of the model rules
Withdrawal: permission needed if matter before a tribunal
Waived by
MPRC: has to be signed & in writing
CA: informed written consent
202
Ethical screening is ineffective for:
Concurrent conflict of interest
Is a set of measures designed to resrict confidential info to a single lawyer and prevent dissemination to others in the same org.
203
4 situations of confidential info & exceptions
Confidential info: known only to a nonlawyer in the practice org. & knowledgeable nonlawyer is timely & proper
Confidential info acquired by a lawyer: before that person became a lawyer and knowledgeable person timely and properly screened
Actual knowledge of confidential info that a lawyer acquired at a firm & timely and proper screen
Exception:
Condensable conflict and all effective clients give informed consent confirmed in writing
Perspective client and there is a new matter adverse to that prospective : may be screen if 3 conditions are met
Disqualifies lawyer is apportion no part of the fee
Written notice is prompt
Reasonable measures to avoid exposure to more disqualifying info that was reasonably necessary
204
representing the corporate client
3 situations which a constituents interest might diverge from the orgs interest
Constituent contemplating in conduct counter to the company’s interest for the constituent’s personal benefit
Constituent may be contemplating conduct on behalf of the company that would cause the company to violate the law
Constituent may be experiencing personal difficulties such as depression, addiction ect and that interferes with the ability to do his/ her job
205
miranda warning
Provide a company constituents with a warning, the attorney represent only the client and the constituent individually
Attorney giving the warning should make clear: attorney- client privilege over communications between the attorney and constituent belonging to the company AND may choose to waive privilege and disclose into to a govern agency
If you don’t give this warning: professional discipline and civil liability: assumed duty of confidentiality to constituent: run duties of loyalty and candor to organizational client ( conflict of interest and probably can’t get constituent to waive)
May be disqualified from representing the organization if no warning ( might not be able to undo any actions or arrangements)
Has/ must include attorney client privilege over communications between attorney and constituent belong to the company and the company may choose to waive privilege and disclose info to govern. Agency or 3rd party
206
Reporting up (Protect Organization Interest)
A lawyer shall refer the matter to the higher authority in the organization unless the lawyer reasonably believes that it is not necessarily in the best interest of the organization
207
Law Firm and Court Obligations
Duties a Lawyer Owes if They Leave a firm
Still owes duties to all their current client as if they are still representing them until they become former clients
If clients stay at firm: lawyer has to withdrawal duties
Duty of candor: atty & firm have duty to inform clients of any material change in rep. Including departure of lawyer : client has to consent to how case is handled in future
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Gathering & Handling Evidence Investigations
Administration Holds
Something that is destroyed that could have been used in the investigation
Have to tell the client to give document
Advocate
Allude to any matter the lawyer doesn’t reasonably believe is relevant or will not be supported by admissible evidence
Request person other than client to refrain from volunatrely giving relevant info unless: the person is a relative, employee ect AND lawyer reasonably believes
Spoliation
Unlawful destruction or alteration of material that could have evidentiary value in a future proceeding (3.4 Violation)
You should and must become active in your clients efforts to preserve info
CA Variation: lawyer is in receipt of docs sent by mistake & lawyers knows that writing is privileged to work product: then lawyer must promptly notify the sender and refrain from examining the writing any more than necessary
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Meritorious Claims & Contentions (3.1)
A lawyer shall not bring or defend a proceeding or assert or controvert a issue therein unless there is a basis in law and fact for doing so is not frivolous
A lawyer for the defendant in a criminal proceeding may nevertheless require that every element of the case be established
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Attempts to provide guidance
Filing of an action is not frivolous merely because the facts have not first been fully substantiated or because the lawyer expects to develop vital evidence only by discovery
(information themselves about facts of their client’s cases)
Not even frivolous even though lawyer believes that the client’s position ultimately will not prevail: action is frivolous however if the lawyer is unable either to make a good faith argument or support action taken
Candor in ex parte proceedings
Model Rule 3.3
Ordinarily an advocate has limited responsibility of presenting one side of the matters that a tribunal should consider
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Court Obligations: Limits on advocacy
False Witness Testimony: Rules 3.3
Narrative Examination
Lawyer knows that a defendant in a criminal case is lying: lawyer is stuck between a rock and a hard place
Under model rules: lawyer should try all remedial measures 1st:
UNDER CA: lawyer must try 2 remedial measures
1. Reasonable attempt to persuade the client from testifying AND
2. Attempted to withdraw from the representation
Narrative direct examination: lawyer doesn’t control manner in which testimony occurs: lawyer asks broad open ended ?s and simply allows the defendant to speak
If a defendant is lying: don’t put them on the stand
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CA rules
CA Distinction:
No mandatory requirement report another lawyer or judge for violations that raise a substantial ? of a lawyer’s honesty & trustworthiness
CA doesn’t mandate attorneys reporting each other
Report if: been sued 3x for malpractice in the year, civilly liable for fraud or breach of fiduciary duty, sanction for more than 1,000$, charged w/ felony or convicted of serious crime, disciplined in another jurisd.
CA has restrictions on advertisements
Contingency fee: prohibits stating no fee w/o recovery unless communication explains whether or not client is liable for litigation costs
Restricts Adv contain: guarantee of case outcome. Allusion to quick cash settlement, requirement of disclosure of actors , impersonation of an att. Or contingency fee
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CA rule 1.5:
(a) A lawyer shall not make an agreement for, charge, or collect an unconscionable or illegal fee.
(b) the conscionability of a fee “shall be determined on the basis of all the facts and circumstances existing at the time the agreement is entered,” The factors to be considered in determining an unconscionable fee include the following:
(1) whether the lawyer engaged in fraud or overreaching in negotiating or setting the fee; (not ABA reasonableness factor)
(2) whether the lawyer has failed to disclose material facts; (not ABA reasonableness factor)
(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 he 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.” (not ABA rule 1.5(b)).
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ca atty fee
CA contingency fee
Writing must inform attorney portion
Must specify how much client will be charged for work
If a client doesn’t win the case will be on the hook for the costs for litigation
CA ATTy Fee Distinction
Within the same firm: same as 1.5
Atty outside of firm: the fee share must be in writing, total fees can’t be increased b/c of agreement to divide the feed, client gives consent in writing
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ca atty fee
When looking to an unconscionable fee:
Whether lawyer engaged in fraud or overreaching in negotiating the fee
Whether the lawyer has failed to disclose material facts
Client gave consent to the fee
Exceptions in writing:
Client waives the writing
Prior relation
Or impractical to get writing
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CA conflict interests
May provide financial assistance for any expense
Lawyer can’t buy a client w/ a promise to pay off a debt but may lend a client $ for a legal purpose: client gives written promise to repay the loan
Attorneys can’t solicit a gift but may prepare an instrumentL even if the client is not related to the attorney: both written consent & advisement by certificate of indep. Review:: fidiciary duty: presume that any gift from a client beneficiary is the product of a lawyers undue influence: rendering the gift voidable by client
