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1
Q

An attorney owes his clients a duty of loyalty. The duty of loyalty includes the duty to

A

refrain from actual or potential conflict of interests.

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2
Q

Under the duty of loyalty, A Lawyer may not accept or continue representation of C if

A

(i) the lawyer reasonably believes that he can competently and diligently represent each affected client,
(ii) the representation is not prohibited by law,
(iii) the representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same litigation or other proceeding before the tribunal, and
(iv) each affected client gives informed consent, confirmed in writing (under the MR) or informed written consent (under the CRPC).

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3
Q

Current clients and Lawyers duty

A

A lawyer must not represent a client if doing so would be directly adverse to the interest of another current client or if there is a significant risk that the representation would be materially limited by the lawyers responsibilities to the current client, unless the lawyer reasonably believes she will be able to provide competent and diligent representation to each affected client and each client gives their informed consent, confirmed in writing (Model rules) or informed written consent (CA rules).

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4
Q

). If one lawyer in a firm is unable to represent a client, then the prohibition applies to all other lawyers in the firm unless it

A

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

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5
Q

Duty to communicate

A

Lawyers have a duty to regularly communicate with clients, which includes informing them about their case and answering questions. Lawyers must communicate a settlement offer to the client.

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6
Q

Duty of competence - Model rules

A

a lawyer is obligated to provide comptent representation to a client and must posses the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

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7
Q

Duty of competence CA rules

A

a lawyer must not intentionally, recklessly, with gross negligence or repeatedly fail to preform legal services with competence. A lawyer may accept representation if the requisite level of competence can be achieved through reasonable preparation or by associating with a lawyer of established competence in the field.

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8
Q

Duty of confidentiality

A

A I must not reveal information relating to the representation of a client

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9
Q

A potential COI arises when there is a

A

significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client or third party.

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10
Q

However, under both the ABA Model Rules (MR) and the California Rules of Professional Conduct (CRPC), if there is a concurrent potential COI, a lawyer may undertake the representation if

A

(i) the lawyer reasonably believes that he can competently and diligently represent each affected client,
(ii) it is not prohibited by law,
(iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before a tribunal, and
(iv) each affected client gives informed, written consent (MR “informed consent, confirmed in writing”).

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11
Q

When does a I have a duty to withdraw (must) - MR

When must I w/d in CA

A

lawyer must withdraw from representation when the representation will result in violation of the rules of professional conduct or other law.L’s physical or mental condition materially impairs ability to represent client, or L is discharged by C

Termination is mandatory if L knows or should know that representation will result in violation of rules, L’s physical or mental condition renders it unreasonably difficult to carry out representation effectively, L is discharged by C, or frivolous litigation

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12
Q

Inadvertent Disclosure - MR

A

Under the MR, a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

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13
Q

under the CRPC, where it is reasonably apparent to a lawyer that a writing was inadvertently sent, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall

A

(i) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and
(ii) promptly notify the sender.

Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.

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14
Q

Duty of competence - MR

A

a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

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15
Q

Duty of Competence - CRPC

A

, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence, which requires diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the representation.

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16
Q

Duty to Communicate

A

Under both the MR and CRPC, a lawyer has a duty to keep the client reasonably informed of the status of the case and of all important matters relevant to the case and promptly comply with reasonable requests for information. In California, there is a slight distinction in that the lawyer must keep the client reasonably informed about significant developments relating to the representation.

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17
Q

Duty of Candor

A

A lawyer must not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, and the lawyer must not offer evidence that she knows to be false.

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18
Q

Duty to Supervise

A

A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to all governing ethics rules

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19
Q

Duty of Diligence - MR

A

a lawyer must act with reasonable diligence and promptness in representing a client.. A lawyer is not bound, however, to press for every possible advantage that might be realized for a client.

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20
Q

Duty of Diligence - CRPC

A

a lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client. a lawyer is generally required to be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer.

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21
Q

Contingency fees

A

Attorneys may charge a fee contingent on the outcome of the case. However, contingent fees are prohibited in criminal cases.

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22
Q

CA Writing requirement

A

The CRPC requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client will exceed $1,000. The signed written agreement must include the basis of compensation, including hourly rates, statutory fees, or flat fees, the general nature of the legal services to be provided, and the contractual responsibilities of the lawyer and the client. A copy of the written contract, signed by both parties, must be given to the client or the client’s representative.

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23
Q

Waiver of COI

A

Generally, a client may agree to waive the attorney’s duty to avoid conflicts of interest provided there has been full disclosure to the client and the client consents to it.

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24
Q

Fee rue generally - MR

A

fees must be reasonable based on such factors as the time, labor, and skill required to perform the work

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25
Q

Fee rule - CA

A

fees must not be unconscionable, which is judged by factors including (among others) overreaching, whether the fee is proportionate to the value of services performed, and the sophistication of the lawyer and the client

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26
Q

Advancement of court cost - MR

A

a lawyer may advance litigation costs to the client. Although the client usually must remain ultimately liable for those costs, repayment may be made contingent on the outcome of the case.

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27
Q

Advancement of court costs - CRPC

A

a lawyer may advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter

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28
Q

Recovery in Quantum Merit

A

When a fee arrangement is fixed or hourly and the lawyer’s services are terminated early, the lawyer can recover in quantum meruit for the value of services rendered, although a cap on the lawyer’s recovery may apply.

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29
Q

Duty of Candor - To not File Frivilous claims

A

MR 3.1 prohibits a lawyer from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous.

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30
Q

When is an action considered frivilous under MR

A

if the lawyer is unable to make a good-faith argument on the merits of the action taken or they lack probable cause

31
Q

Under the CA RPC a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless

A

it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.

32
Q

Duty of Loyalty - Org as a client

A

A lawyer who represents an organization, such as a corporation, owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees.

33
Q

Duty of loyalty - Org and Client

A

In dealing with an organization’s directors, officers, employees, or other constituents, a lawyer must explain the identity of his client, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the constituents with whom the lawyer is dealing. In said event, the lawyer must not mislead the constituent into believing that the he may communicate confidential information to the lawyer in a way that will not be used in the organization’s interest if that is or becomes adverse to the constituent.

34
Q

Duty of Loyalty - Reporting within the org

A

upon learning of an action by a person associated with the organization that the lawyer knows or reasonably should know is a violation of a legal obligation or a violation of the law that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best lawful interest of the organization. This includes urging reconsideration of the matter under certain circumstances. Further, unless the lawyer reasonably believes that it is not in the best interest of the organization to do so, the lawyer must refer the matter to higher authority in the organization.

35
Q

Reporting outside the org - DOL (MR)

A

if the highest authority refuses or fails to address in a timely manner that which is a clear violation of law and the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may disclose information outside the organization to the extent that he believes necessary to prevent the substantial injury.

36
Q

Reporting outside the org - DOL (CRPC)

A

if the lawyer has reported to the highest authority and that authority insists upon action, or fails to act, in a manner that is a violation of the law that will likely cause substantial injury to the organization, the lawyer must withdraw because you are not allowed to reveal info to the outside

37
Q

Attorney client relationship begins when and what is required

A

The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.

38
Q

Retainer agreement

A

All rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.

In california, a I may charge non-refundable fees to ensure the I’s availability to C if C agrees in writing

39
Q

Exception to the Writing requirement

A

However, as an exception to the rule, a writing is not required when the client is a corporation. Here, NP is a corporation, and thus a writing was not required.

40
Q

Threatening a Claim to Gain Advantage

A

Under the CA RPC, California lawyers are specifically prohibited from threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.

41
Q

Claims brought to embarass, delay, burden - MR

A

a claim brought merely to embarrass, delay, or burden a third person violates the rules.

42
Q

Claims brought to embarass, delay or burden - CA RPC

A

a lawyer shall not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person

43
Q

Scope of representation

A

The client decides the objectives and goals of the representation. As the client’s agent, the lawyer must abide by those decisions (within some constraints) but has the authority to determine how best to achieve those objectives. Moreover, a client has no constitutional right to compel his lawyer to assert issues if the lawyer decides not to press those issues as a matter of the lawyer’s professional judgment.

44
Q

Permissive withdrawl - MR

A

a lawyer may seek to withdraw if he can do so without materially harming the client. Even if harm will result, a lawyer may still permissively withdraw if the client insists on a course of action that the lawyer finds repugnant or with which the lawyer has a fundamental disagreement.

45
Q

Permissive withdrawl CRPC

A

a lawyer may permissively withdraw when the client, by other conduct, renders it unreasonably difficult for the lawyer to carry out the representation effectively.

46
Q

Mandatory withdrawl - CRPC

A

a lawyer must withdraw from representation if he knows or reasonably should know that a client is asserting a claim or defense or taking an appeal without probable cause and for the purpose of harassing or maliciously injuring any person.

47
Q

Duty of Subordinate lawyer

A

Under both the Model Rules (MR) and the California Rules of Professional Conduct (CA RPC), a subordinate lawyer must conform to the ethics rules even if acting under the direction of a supervising lawyer. The subordinate lawyer does not violate the ethics rules, however, if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty.

48
Q

How do you if it is reasonable

A

the subordinate lawyer has a responsibility to undertake his own analysis of the law applicable to the supervising lawyer’s conduct. If an ethical issue can be reasonably answered in only one specific way, it will not constitute an arguable question. If the issue is ambiguous, on the other hand, then the subordinate lawyer will not be in breach of his duty by following the supervising lawyer’s instructions.

49
Q

Duty of fairness

A

Under the MR, the duty of fairness requires that a lawyer not make a frivolous discovery request of an opposing party

50
Q

Duty to report

A

A lawyer must make a reasonably diligent effort to comply with a legally proper discovery request of an opposing party.

51
Q

Screening - MR

A

COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if (i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, (ii) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and (iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

52
Q

Screening - CRPC

A

any conflict of interest that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if (i) the prohibited lawyer did not substantially participate in the same or a substantially related matter, (ii) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and (iii) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.

53
Q

Solicitation - CA

A

solicitation of prospective clients in person, by live telephone, or by real-time electronic contact is prohibited when a significant motive for the lawyer’s action is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the soliciting lawyer.

54
Q

Solicitation - MR

A

they do not prohibit real-time electronic contact and they contain an additional exception for solicitation of a person who routinely uses for business purposes the type of legal services offered by the lawyer.

55
Q

Attorneys are permitted to send general professional announcements to people in the area. General announcements by lawyers, including ____ are generally not considered improper solcitation

A

including changes in personnel or office location

56
Q

Advertisement - CA must include

A

must include the name and address of at least one lawyer or firm responsible for its content.

57
Q

Advertisement - MR

A

instead of the “address,” the advertisement must include the “contact information” of at least one lawyer or firm responsible for its content, which can include a website address, a telephone number, an e-mail address, or a physical office location.

58
Q

Additionally, a lawyer is allowed to communicate the fact that she does or does not practice in a particular field of law but may not state that she is

A

a “certified specialist” unless she has been certified by the relevant authorities under the ABA or State Bar of California.

59
Q

Advertisement Requirements

A

The MR and CA RPC require that any advertisement must include the name and office address of at least one lawyer or firm responsible for its content. Additionally, a lawyer is allowed to communicate the fact that she practices in a particular field of law but may not state that she is a “certified specialist” unless she has been certified by the relevant authorities under the ABA or State Bar of California.

60
Q

Expert Witness Fee

A

Both the MR and CA RPC permit attorneys to compensate an expert witness based upon the reasonable rate in the expert’s profession and for reasonable expenses incurred as a result of testifying.

61
Q

Expert Witness Fee - CA distinction

A

specifically prohibit compensation that hinges on favorable testimony from the witness or on the outcome of the case.

62
Q

Duty not to further perjury (both MR and CA)

A

attorney is prohibited from knowingly offering false evidence and may refuse to offer evidence that she reasonably believes is false

63
Q

Duty not to further perjury MR

A

if a witness called by the lawyer has offered material evidence and the lawyer afterwards comes to know of its falsity, she must take reasonable remedial measures, which includes attempting to persuade the witness to withdraw or correct the statement, and if that does not work, to then either withdraw from representation or disclose the falsity to the tribunal.

64
Q

Duty to not further perjury - CA

A

remedial measures do not include disclosure of client confidential information that a lawyer is required to protect under the CA RPC and the State Bar Act.

65
Q

Gifts to witness

A

Both the MR and the CA RPC permit reasonable compensation to an expert witness. Policy-wise, a gift to an expert witness may compromise the witness’s ability to be fair and may influence her to give favorable testimony in anticipation of a gift.

66
Q

Referral fee - MR

A

The MR generally prohibit payment to anyone for recommending a lawyer’s services with few exceptions. A referral fee given in return for merely recommending another attorney violates this rule.

67
Q

Referral Fee - CA

A

although a referral fee is generally impermissible, an exception exists for when an attorney gives a gift to a person for a referral that results in employment, so long as the gift was not given in consideration of any promise, agreement, or understanding that the gift would be forthcoming or additional referrals would be made or encouraged in the future.

68
Q

Trial publicity rule

A

L is not permitted to make an out of court statement that he knows/should know will be distributed publicly and will have a substantial likelihood of materially prejudicing the court proceeding

69
Q

Under trial publicity, what facts are available for the I to say

A

claims / identity of parties

70
Q

In criminal trials when there is trial publicity, the out of court statements are considered

A

prejudical

71
Q

If a prosecutor has knowledge that law enforcement under her oversight is going to make a prejudicial statement, she mus

A

make reasonable efforts to prevent the statement.

72
Q

Fairness to opposing counsel

A

must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material or counsel/assist another person in doing so

73
Q

Improper influence

A

A lawyer must not seek to influence the judge, prospective juror or other official by means prohibited by law.

74
Q

Duty of fairness

A

A L may not engage in dishonest conduct or trick the opposing party

Things to remember for the Bar (21 decks)

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