PR Flashcards
When is the lawyer client relationship formed.
The lawyer-client relationship begins when the client reasonably believes that the relationship exists.
written agreement is not required
Lawyer’s perception is irrelevant
A lawyer does not have to accept representation of a client unless as court appointment.
What is the scope of representation
Client determines the ends (goals and objectives
Lawyer determines the means (strategy and methods)
What is a lawyer’s duty to communicate
A lawyer must reasonably communicate with the client about the means of representation.
CA: A lawyer MUST notify the client about any offer to plea bargain in a criminal matter, and any written settlement offer in a civil matter.
- A lawyer must communicate an oral settlement offer in a civil matter if it is a significant development
When can a lawyer withdrawal over disagreements in CA.
In CA: a lawyer may withdraw over a fundamental disagreement as to the appropriate strategy if it makes representation unreasonably difficult.
How can a lawyer advise clients about crimes or frauds?
1) A lawyer may not advise or assist the client in conduct the lawyer KNOWS is criminal or fraudulent
2) CA: Lawyer also prohibited from counseling or assisting client in conduct the lawyer knows to violate any law, rule, or ruling o f a tribunal.
3) lawyer may discuss legal consequences of proposed course of conduct
4) Lawyer may take steps in good faith to determine the validity, scope, meaning, or application of the law.
When MUST a lawyer withdrawal from representing a client?
1) CA: Ethical rule violation.
ABA: ethical rule violation or any other law violation
- if conduct will likely result in violation than withdrawal is permitted
2) Health makes i unreasonably difficult to carry out representation (ABA: materially impairs)
3) Fired by client
4) CA: when lawyer knows or should know that the client is making a claim (defense or appeal) without probable cause AND for the purpose of harassing or maliciously injuring another.
When MAY a lawyer withdrawal?
1) Crime fraud
2) Breach of agreement by client (material term)
3) Client’s conduct makes representation unreasonably difficult
4) Other good cause exists.
What are ABA additional grounds for when a lawyer may withdrawal from client?
Any reason, so long as there will be no materially adverse effect on the client
If representation will cause an unreasonable financial burden on the lawyer; or
the client insists on a course of action the lawyer finds repugnant or with which the lawyer has a fundamental disagreement.
In CA, what are additonal grounds a lawyer may withdrawal from client?
Inability to work with co-counsel if in the best interest of client.
Client insists on asserting an unwarranted claim or defense, adn without a good-faith argument for law’s extension, modification, or reversal.
What are 3 responsibilities upon termination?
1) give client reasonable notice and allow time to find other council
2) Mitigate consequences, including return all client papers and property reasonably necessary to the representation.
CA: must return all client papers and property whether the client has paid for
them or not.
ABA: must return papers and property to which the client is entitled.
3) recover /refund fees
Must return any unearned fees
May keep retainer fee paid to ensure lawyer’s availibility
sWhat fee can a lawyer charge in CA / ABA
ABA: Lawyer cannot charge unreasonable fee:
CA: rules prohibit an unconscionable fee.
What are the relevant factors of fee determination in both ABA and CA?
1) time and labor required
2) novelty and difficulty of the case
3) liklihood lawyer will have to forego other employment
4) Amount of work involved and results obtained;
5) time limitations imposed;
6) nature and length of relationship with client;
7) Whether fee is fixed or contingency
8) experience, reputation, and ability of the lawyer.
What additional factor does ABA consider in fee determination?
the fees customarily charged in the locality and community.
What additional factors does CA consider when evaluating fees?
1) Whether lawyer engaged in fraud or
2) whether lawyer failed to disclose material facts;
3) relative sophistication of lawyer and client in setting the fee
4) the amount of the fee in proportion to the value of the services performed;
5) whether client gave informed consent.
What are the writing requirements for fee agreements in CA (ABA has none)
MUST be in writing if the fee (including expenses) will exceed $1,000.
Writing must include the nature of the services, responsibilities of the parties, and basis for compensation.
What are the four exceptions to written contracts for fee agreements?
CHEW
1) client is a Corporation;
2) History of similiar services provided to client in the past
3) emergencies; or
4) client Waives in writing the right to a written fee contract
- or otherwise impracticable.
What writing is required for contigency fee writing? (3 elements plus two additional for CA)
Must in in writing and signed by the client. (CA lawyer must also sign)
Must state the following:
1) basis for calculating fee;
2) client’s liability for costs & expenses;
3) whether expenses will be deducted before or after the contingent fee is calculated;
CA also requires:
1) state if lawyer’s fee is negotiable (if not subject to medmal fee limits); and
2) Whether the client will have t pay the lawyer for related matters not covered by the agreement.
When is contingent fee prohibited?
1) Criminal matters
2) domestic relations IF the fee is contingent on client securing a divorce or based on amount of spousal/child support recovered.
Fees may be shared with a lawyer not in the same firm if:
1) Client consents in writing; and
2) total fee is not increased due to fee splitting.
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ABA Only rule: fees must be split in proportionality to the services of each lawyer, unless each lawyers assumes joint-responsibility.
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CA Only: the two lawyers must enter into a written agreement at our about the time of the client’s consent; and
provide full written disclosure that includes the identity of the lawyers.
Flee spit is allowed even if referring lawyer perfroms no work.
What five conditions allow a non-lawyer to share fees?
A lawyer cannot share fees with a non-lawyer, unless:
1) paid to the lawyer’s estate or specified person as a death benefit;
2) paid to lawfirm staff through compensation or retirement agreements;
3) paid as part of a court order fee and shared with nonprofit ogranization that associated with the lawyer in the matter;
4) paid to lawyer’s estate or representative by a lawyer who purchases the practice; or
5) paid to a lawyer referral service (CA)
What is the duty to segregate clients funds
A lawyer must keep client property and funds separate from own.
1) funds must be deposited into a separate client trust account;
2) client funds may not be co-mingled with lawyer’s personal funds (including promptly withdrawing when earned); and
3)seperated upon dispute with undisputed portion sent to client.
Upon client request, CA mandates arbitration for fee disputes.
What are exceptions to fund separation?
1) Flat fee deposit into lawyer’s account if:
a. written disclosure (signed if over $1K) that states
i. have right to have fee placed in trust account until it is earned; and
ii. entitled to refund to any amount not earned.
2) Lawyer funds may be deposited into trust account to pay or avoid bank charges.
3) An award belonging to both the lawyer and client can be deposited in the client trust account if it is promptly dispurses to the lawyer and client.
How long does a lawyer need to keep client records
The lawyer must keep a client ledger and provide an accounting.
Records must be maintained for 5 years after the close of the clients case.
What is lawyer-client privilege?
A rule of evidence that protects the lawyer from having to disclose a confidential communication made by the client for the purpose of legal representation.
Privilege generally survives clients death. (CA it terminates when the client’s estate is sttled, and the personal rep is discharged.)
-client can waive the privilege.
Exceptions:
-crime/fraud (CA client does not have to be one committing the crime or fraud.
-Disputes between lawyer and client, co-clients, or deceased client’s heirs are not privileged.
What is work-product doctrine?
A rule of civil procedure that protects against the disclosure during discovery of any material containing the mental impressions, conclusions, or opinions, or legal theories prepared in anticipation of litigation.
CA provides absolute immunity
Any writing that reflects and attorney’s:
- impressions,
- conclusions
- opinions
- or legal research or theories
is not discoverable under any circumstances.
Qualified protection applies to other work product (info obtained by investigators) and may be discoverable to prevent unfair prejudice.
What is the Duty of confidentiality?
A rule of ethics that generally prohibits a lawyer from disclosing any information related to the representation of a client, no matter its source, absent client consent.
Exceptions:
- informed consent of client (ABA and CA)
- impliedly authorized to carry out representation (ABA);
- When permitted by the rules (ABA)
-CA: when a lawyer reasonably believes disclosure will precent aa crime that the lawyer reasonably believes is likely to result in death or substantial bodily harm.
A lawyer must act competently to prevent inadvertent or unauthorized disclosure of information relating to representation
What is the duty and exceptions to confidentially regarding potential clients?
Duty attached when a person (CA or authorized rep) consults with a lawyer regarding the possibility of forming a lawyer-client relationship, even if the lawyer is not hired.
Communications are not protected if made:
- by person who consults a lawyer without a good-faith intention to retain the lawyer,
- after the lawyer states they are unwilling or unable to represent client;
- unilaterally without a reasonable expectation that the lawyer will be retained.
What are the main exceptions to the duty of confidentiality?
A lawyer may reveal info reasonably believed necessary to prevent:
ABA: reasonably certain death or substantial harm (does not have to be criminal)
CA: a criminal act that is reasonably believed to result in death or substantial
bodily harm.
In CA a before revealing information, the lawyer MUST:
- if reasonable, take steps to dissuade the client from committing the acts, and
- inform the client of the lawyer’s decision to reveal the information.
Must disclose no more that reasonably necessary to prevent the criminal act.
What are four relationships where duty of loyalty is often tested?
1) betweeen lawyer and client
2) between clients (current and/or former)
3) third-party payor and client;
4) organization client and members
What is the general rule of conflict between lawyer and client?
A lawyer may not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s own interests, unless:
The lawyer reasonably believes they can provide competent and diligent representation.
representation is not prohibited by law
representation doe not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding (no direct adversity)
Affected clients give informed consent, confirmed in writing (ABA), or informed written consent (CA).
Standar for reasonable belief is subjective to lawyer’s thoughts and objective of disinterested lawyer.
What is the rule for having close relationship with opposing counsel?
A lawyer may not represent a client when the lawyer in in a close relationship with opposing counsel (includes relative), unless:
- the lawyer reasonably believes they can provide competent and diligent representation; and
- CA: Provides written disclosure to client
-ABA: Each affected client gives informed consent.
What is the rule for relationship with witness or party? CA only.
A lawyer may not represent a client if the lawyer (or another in the same firm) has a relationship with, or responsability to, a party in the matter, unless:
- the lawyer reasonably believes they can provide competent and diligent representation; and
-provides written disclosure to the client
(legal, business, financial, professional, or personal)
What is the rule for sexual relationship with client?
A lawyer may not have sexual relations with a client, unless there is ongoing and consensual sexual relationship that predates the representation.
CA: Ban does not apply to the lawyers spouse or registered domestic partner
Conflict is personal and not imputed to law firm.
What is the rule for lawyer as witness in client’s case?
a lawyer may not act as both lawyer and necessary witness in an action, unless the lawyer’s testimony relates to:
- an uncontested issue
- the nature and value of legal services provided
CA: client can waive with informed written consent
ABA: A lawyer may still act as advocate if disqualification of the lawyer would work substantial hardship on client.
What are the rules for financial relationships between lawyer and client?
1) Proprietary interest:
-ABA a lawyer may not acquire a proprietary interest in the cause of action or subject matter of the litigation. (exception: contingent fee agreements or liens to secure payment of a lawyer’s fee)
-CA: NO equivalent rule. A lien to secure fees is allowed if it complies with the rule regarding business transaction with a client.
2) Financial assistance:
-ABA: A lawyer generally may not provide financial assistance to the client if made in connection with ongoing or expected litigation.
-CA: No payment of any personal or business expenses is permitted (applies to existing and prospective clients)
-ABA: a lawyers representing an indigent client probono may give the client modest gifts for basic living expenses.
-Advancement: A lawyer may advance court cost and litigation fees, the repayment of which may be contingent on the outcome of the case. (repayment not required for indigent clients)
3) Business Transactions:
- A lawyer may not enter into a business transaction with a client, or knowingly acquire an adverse ownership or financial interest, unless:
- the terms are fair and reasonable to the client and disclosed in writing,
- the client is advised in writing about, and given reasonable opportunity to seek, independant counsel; and
- the clinet gives informed consent in a signed writing
(exception: does not apply to standard commercial transactions that the client generally makes available to the public)
4) Literary or media rights:
- ABA: prior to the conclusion of representation, a lawyer may not make nor negotiate an agreement giving the lawyer literary or media rights based on the representation
-CA: no specific rule; analyze under business transactions with clients.
5) solicitation of gifts:
- A lawyer may not solciit or draft an instrument (will or trust) that gives a substantial gift to the lawyer or lawyer’s relatives, unless the client:
- is related to the lawyer by blood or affinity, or
- CA: has been advised by independent counsel.
- A lawyer or the lawyer’s relative may accept a gift from a client, if not the product of undue influence.
6) malpractive waiver
-A lawyer may not make an agreement with a client to limit malpractice liablility.
ABA: unless the client is represented by independent counsel.
What is the rule of conflicts between current clients?
A lawyer may not represent a client whose interests are directly adverse to another client, or if there is a significant risk that representation would be materially limited by the lawyer’s responsibilities to another client, unless:
- the lawyer reasonably believes that she can provide competent and diligent representation to each client,
-the representation is not prohibited by law
-the representation does not involve the assertion of a claim by one client against another client represented by the lawyer, in the same litigation, where other proceeding before a tribunal, and
-the client gives informed consent, ABA informed consent, confirmed in writing California written informed consent.
California allows a lawyer to obtain informed consent from the client in advance of an actual conflict
-not directly adverse clients a lawyer may not represent opposing parties in the same lawsuit or transaction
-a lawyer may not represent opposing parties and related matters absent informed consent, except if their interests are only economically adverse.
What are the rules of conflict between current and former client?
A lawyer may not represent a client in the same or substantially related matter as a former client if their interests are materially adverse to each other
exception: permitted as a former client gets proper consent,
-ABA informed consent confirmed in writing
- CA informed written consent.
What are the rules of conflict between current and prospective client?
CA: applies the rules of conflict between clients and prospective client if the lawyer required material confidential information from the perspective client,
ABA: applies the rule to a conflict between the client and prospective client if the lawyer acquired information that could be significantly harmful to the prospective client,
(the prospective client conflict is subject to the rules regarding imputed disqualification and screening procedures.)
What are the rules of conflict with the lawyer switch firms?
Private firms:
- a lawyer who joins a new law firm may not represent a client in the same or substantially related matter if:
-the client’s interest is materially adverse to a client of the former law firm, and
- the lawyer required material confidential information about the former client;
unless: the former client gives informed consent,
ABA: informed consent confirmed in writing
CA: informed written consent
government lawyers: a former government lawyer may not represent a client in a matter in which the lawyer participated personally and substantially
unless: the government agency gives its informed consent.
Inputed disqualification: Rule: if one lawyer in the firm is conflicted the whole firm is conflicted.
Exception: imputation does not apply to personal conflict arising from the lawyer who is related to opposing counsel or do to a sexual relationship with a client.
Waiver of imputed conflicts requires:
-informed consent; and
- general waiver of conflict rules
Screening: to avoid a conflict when a lawyer switches firms, the new firm may “screen off” the lawyer from participation in the matter.
-CA: if the disqualified lawyer did not substantially participate int he same or substantially related matter
- Requirements for screening:
- the disqualified lawyer must not be apportioned any part of the fee
- the former client must receive written notice with a description of the screening procedures; and
- the firm must provide a certification of compliance if requested by the client.
What is required in a waiver of imputed disqualification?
1) The lawyer reasonably believes that they will be able to provide competent and diligent representation to the affected client;
2) the representation is not prohibited by law; and
3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
What is the rule of conflicts with third parties?
A lawyer must not accept compensation from a third party for representing a client, unless:
- there is no interference with the lawyer’s professional judgement
- client confidentiallity is protected; and
- the client gives informed consent (CA: informed written consent)
When representing an organization, what are the rules for reporting and disclosing misconduct up in the organization?
When a lawyer knows or reasonably should know that the actions of an agent of the organization may be illegal or likely to cause substantial injury to the organization, the lawyer must act in the best interest of the organization, and
-urge the individual to reconsider;
-if that fails, the lawyer must report the misconduct “up the ladder” to the highest authority within the organization.
If an individual’s action become adverse to the entity, the lawyer must advise the individual of the conflict and urge them to seek independent counsel.
When representing an organization, what are the rules for reporting and disclosing misconduct out of the organization?
If the action is a clear violation of law and the entity fails to act after the lawyer has exhausted internal remedies:
ABA: the lawyer may disclose the misconduct outside of the organization to the extent reasonably necessary to prevent substantial injury to the organization.
CA: the lawyer may not disclose per the duty of confidentiality but the lawyer may withdraw if the client persists in illegal conduct likely to cause substantial injury to the organization.
What is the duty of competence?
A lawyer must provide competent representation.
- competence means possessing the knowledge, skill, and preparation reasonably necessary for representation.
-CA: Also include requisite mental, emotional, and physical ability.
-CA: A lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to perform with competence.
A lawyer should not accept representation in a matter unless it can be performed competently.
Neither client consent nor lack of financial harm will cure a violation of this rule.
What is the duty of diligence?
A lawyer must act with reasonable diligence and promptness in representing a client.
CA: A lawyer must not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence.
“Reasonable diligence” means acting with commitment and dedication to the interests of the client and without neglect or undue delay.
What is the duty of communication?
A lawyer must regularly communicate with the client, and must:
- Keep the client reasonably informed about the status of the matter (CA: about significant developments) and promptly comply with requests for information;
-communicate the scope of representation, and reasonably consult with the client about the means to accomplish the client’s objective;
-Advise the client as tot he relevant limitations if the client expects unlawful or unethical assistance; and
-explain matter to allow for an informed decision.
What is the duty to the court?
1) duty to avoid frivolous claims:
- a lawyer must not present a claim or defense not warranted under the law or supported by a good-faith argument for extension, modification, or reversal of the law.
-CA: A lawyer must not assert a claim or defense without probable cause in order to harass or maliciously injure another.
2) Duty of Candor:
a. false statements of fact or law
- a lawyer must not knowingly make a false statement of fact or law to a tribunal.
- duty to correct: a lawyer must correct a false statement of material fact or law previously made to the tribunal.
b. Use of legal authority:
- a lawyer must disclose controlling adverse legal authority if not disclosed by opposing counsel.
- CA: a lawyer must not knowingly misquote a book or other legal authority.
c. use of false evidence
-A lawyer must not offer evidence knowing it to be false (does not apply to criminal
D testimony)
-if the lawyer is not certain and has only a reasonable belief the evidence is false, the lawyer has the discretion whether to offer it.
i) before testimony has been given:
- a lawyer must take reasonable remedial measures to present a client from presenting false testimony, and urge the client not to testify falsely.
- if the client refuses, the lawyer may seek court permission to withdraw
-if a motion to withdraw is denied or is not feasible:
ABA: the lawyer must notify the court even if it requires the lawyer to reveal client confidential info.
CA: the lawyer must not breach client confidentiality
-Criminal cases: if the lawyer reasonably believes but does not know the testimony will be false, the lawyer must honor the client's withs to testify. -CA: the lawyer may permit the client to testify in narrative fashion lawyer must first make reasonable efforts to dissuade the client from the unlawful course of conduct and the lawyer must have sought permission from the court to withdraw, as required by the rules terminating representation.
ii) After testimony:
-A lawyer must take reasonable remedial measures and urge the client to withdraw the false statement.
-if that fails, the lawyer may seek permission from the court to withdraw, if feasible.
-if withdrawal is not an option:
ABA: the lawyer must notify the court
CA: the lawyer must not disclose the client perjury.
Duty of candor lasts until the final judgement has been affirmed on appeal or the time for appeal has passed.
What is the duty to jurors?
During a proceeding, a lawyer must not directly or indirectly communicate with a juror or member of the jury pool , even about matters unrelated to the case.
After proceeding end, contact is permitted if not involving duress, misrepresentation, or harassment.
CA: Contact must not be made to influence future jury service.
What are the duties relating to trial publicity:
a lawyer may not make an out-of-court statement the lawyer knows or should know will be disseminated in the media and will have a substantial likelihood of causing material prejudice to the proceeding. (EXCEPTION: a lawyer may make a statement to mitigate recent prejudicial publicity.)
Prosecutors: must exercise reasonable care to prevent persons assisting or associated with the prosecutor from making extrajudicial statements the prosecutor would be prohibited from making. ABA: A prosecutor may not make comments that have a substantial likelihood of heightening public condemnation of the accused.
Allowable statements; A lawyer may state basic information, such as:
-the claim
- information in the public record
- the status of the investigation or steps in the litigation
-identity of criminal defendant, including info necessary to aid apprehension
- the identity of investigation and arresting officers or agencies and the length of the investigation
-assistance in obtaining evidence and information necessary for the case; and
- a warning of danger if there is a likelihood of substantial harm to an individual or the public, but only to the extent reasonably necessary to protect them.
What are the duties of a prosecutor?
- must not prosecute without probable cause
- must ensure the D is advised of the right to counsel and given reasonable opportunity to obtain counsel.
- must timely disclose exculpatory evidence.
- after conviction, must promptly disclose new evidence that creates reasonable likelihood of the defendant’s innocence, and investigate whether D was wrongfully convicted.
- must not seek the waiver of pretrial rights from an unrepresented defendant.
What is the duty of fairness?
- lawyer must not suppress evidence they are legally obligated to produce.
- must not pay or offer to pay a witness to induce specific testimony. (reasonable expenses related to testimony okay) (reasonable fee for expert testimony ok)
- must not violate discovery rules or allude to inadmissible facts in court.
-must not communicate ex parte with judges or other officials unless authorized to do so by law or court order.
What are duties regarding inadvertent communications?
- A lawyer who inadvertently receives a writing relating to representation of a client, and knows or reasonably should know of the mistake, must promptly notify the sender.
CA: if the lawyer knows or reasonably should know the writing is protected by privilege or the work product doctrine, the lawyer must limit examination of the writing to no more than is necessary to determine if it is protected.
What is the duty not to contact a represented party.
A lawyer may not, without consent of the other lawyer, communicate directly or indirectly about the subject matter of the representation with any person the lawyer knows is represented by counsel. (even if the represented person initiates or consents to the communication.)
If the client is an organization: lawyer must obtain consent of the organization’s lawyer before communicating with:
CA: officer, director, partner, agent, or current employee if the subject is any act or omission of the person that may be imputed to the organization for purpose of civil or criminal liability.
ABA: a constituent of the organization who supervises, directs, or regularly consults with the organization’s lawyer, or has the authority to obligate the organization with respect to the matter that may be imputed to the organization for liability.
Consent is not required to communicate with a former employee of the organization.
In communicating with a current or former employee of the organization, a lawyer may not use improper methods to obtain evidence.
What is the duty of honesty?
Rule: when represent a client a lawyer must not knowingly;
- make a false statement of material fact or law to a third party; or
-fail to disclose a material fact necessary to avoid assisting a client in a crime or fraud (unless prohibited by duty of confidentiality)
What is the duty when dealing with unrepresented parties?
When dealing with a person who is not represented by counsel, a lawyer may not imply that they are disinterested, and in the even of a misunderstanding, the lawyer must make reasonable efforts to clarify.
If the interests of the party are in conflict with the client (ABA: or have a reasonable possibility of being in conflict), the lawyer may not offer advice other than urge the party to get counsel.
CA: the lawyer must not seek to obtain privileged or confidential information.
What is the general rule for advertising?
A lawyer may not make any false or misleading communications about themselves or their service.
A statement is false or misleading if it contains material misrepresentation of law or fact or omits a fact necessary to make the communication as a whole not misleading.
What is required and allowed content in advertising?
Required:
ABA: Name and contact information of at lease one lawyer or firm responsible for the content. (website, telephone number, email, or physical location)
CA: the name and address of the lawyer responsible for its content
Ads without required content are presumed to be false or misleading.
Allowed:
-fields of practice
-fees for routine services
-information about bar association
-degrees, memberships, and professional licenses.
Trade names:
- a lawyer may not use a firm name, trade name, or designation if misleading.
-a designation includes logos, URLs and email signature block.
What is advertising content that is presumed to be misleading in CA?
1) Guarantee about outcome of the legal matter, including statements about quick settlements.
2) Testimonials or endorsements of a lawyer, without a disclaimer
3) Dramatization of an event or impersonation of a client, without a disclaimer
What are the rules and exclusions for solicitation?
Solicitation is targeted communications that offer legal services directed at specific persons. Focus is on communication aimed at pecuniary gain.
General rule:
- a lawyer must not solicit professional employment through person-to-person contact (live, real-time, including phone)
CA: also prohibits solicitation by real-time electronic contact (instant messaging, texting)
Unless: the lawyer has a family, close personal, or prior professional relationship with the individual. (ABA: also persons who, for business purposes, routinely use the type of legal services provided by lawyer.)
Exclusion:
- a lawyer may not solicit employment if:
the prospective client makes knower her desire not be solicitied, or
the solicitation involves coercison, duress, or harassment.
What is the CA rule for targeted Mail or Email ads?
Targeted solicitations (written, recorded) to a person known to be in need of legal services in a particular matter must include the work “adverstisement” or similiar on:
- the outside of the mailing envelope; and ‘
- the beginning and ending of all recorded or electronic communications.
What is the rule on Runners and Cappers?
A lawyer may not employ an agent to monitor events at public places likely to produce legal work (CA this rule will also subject lawyer to criminal liability)
What are grounds of misconduct?
1) a lawyer may not violate or knowingly assist in or induce a violation of the rules
2) a lawyer with specific knowledge of another’s misconduct may not ratify the misconduct. (paralegal solicits at scent of accident, lawyer can’t take case)
3) a lawyer may be subject to discipline for misconduct even thought a client is not harmed.
4) additional conduct for which a lawyer may be subject to discipline:
- committing an act involving dishonesty, fraud, deceit, or misrepresentation, whether or not it involves the practice of law.
- committing a crime that reflects adversely on the lawyer’s honesty or fitness as a lawyer
- committing an act prejudicial to the administration of justice.
- suggesting an ability to improperly influence a government agency or official
- knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.
CA specific rules:
- a lawyer may not threaten criminal conduct to obtian an advantage in a civil dispute.
- a lawyer or law firm may not engage in unlaweful harassment, discrimination, or retaliation on the basis of a protected characteristic. (race, religion, national origin, ancestry, physical diability, mental disability, medical condition, marital status, gender identityor expression, sexual orientation, age, military and veteran status, or other cetegory of discrimination prohibited by law.
What is malpractice liability?
Malpractice gives rise to civil liability. Malpractice actions are brought by the client and often based on theories of contract or tort. The primary focus is on whether a lawyer is subject to professional discipline. Unlike an action for discipline, an action for malpractice requires proof of injury to the client.
What is the duty to supervise other lawyers?
A lawyer with managerial authority must take reasonable efforts to ensure the firm’s lawyers and non-lawyers comply with he rules by instituting policies and procedures.
A lawyer with authority to supervise lawyers or non-lawyers employees or agents must make reasonable efforts to ensure compliance with the ethical rules
If the lawyer knows of misconduct at a time when its consequences can be avoided or mitigated, then the lawyer may be subject to discipline for failing to take reasonable remedial action.
What are the obligations of a subordinate lawyer?
A subordinate lawyer is bound by the rules, notwithstanding a directive by a supervisor, unless obeying a supervisor’s reasonable resolution to an arguable question of professional duty.
The subordinate lawyer has a responsibility to undertake her own analysis of the law applicable to the supervising lawyer’s conduct.
If reasonable minds would not differ, the issue is not an “arguable question”
What is the duty to report unethical conduct by other lawyers (ABA only)
A lawyer must report misconduct of another lawyer if they have actual knowledge of misconduct that raises a substantial question as to the honesty, trust worthiness, or fitness to practice law.
A substantial question involves a material matter of clear and weighty importance.
What is the duty to report self of ethical violation (CA Only)?
A lawyer must report own misconduct, in writing within 30 days of having knowledge of any of the following occurrences:
-filing of 3 or more lawsuits within one year alleging malpractice or professional misconduct
- a judgment for fraud, misrepresentation, or breach of duty;
- a felon charge or a conviction (felony or misdemeanor) for misconduct committed during the practice of law demonstrating dishonesty or involving moral turpitude.
-Discipline by any professional or occupational licensing board;
- reversal of judgment in proceeding due to willful or grossly incompetent misrepresentation or misconduct by the lawyer.
- Judicial sanctioning agains the lawyer
- Any felony charge against the lawyer.
What is the duty to avoid the unauthorized practice of law?
A lawyer must not engage in or assist another in engaging in the unauthorized practice of law. EXCEPT:
- A lawyer may associate with local counsel on a temporary basis; or
- May appear pro hac vice with court permission.
CA: a lawyer may not employ, associate in practice with, or assist an unlicensed lawyer in activities constituting the practice of law if the lawyer knows or reasonably should know the person is ineligible
A lawyer may employ such person to engage in other permissible activities upon written notice to the state bar identifying the individual and verifying the person will not engage in the prohibited activities.
What is the duty when joining a partnership or corporation?
Partnership: a lawyer may not form a partnership with a non-lawyer if any of the partnership activities constitute the practice of law
Professional corporation: A lawyer may not practice law in a professional corporation or for-profit association, if a non-lawyer has any ownership interest, a position of management, or has the right to control the lawyer’s professional judgment.
Officers, directors, and shareholders of a CA law corporation rendering legal services must be active members of the bar.
What is the duty when offering “law-related” services?
if a lawyer provides ancillary services along with legal services to the same client, the rules of professional conduct govern all transactions with the client.
Law related services are those reasonably performed in connection with the provision of legal services, such as financial planning, accounting, social work and tax prep.
ABA exception: the rule applies unless the law-related services are distinct and the lawyer has taken reasonable steps to ensure the recipient knows the protections fo the lawyer-client relationship do not apply.
What is the duty regarding non-compete agreements?
- A lawyer may not offer or enter a partnership or employment agreement that restricts a lawyer’s right to practice law after the termination of the relationship.
-A lawyer may not offer or enter a settlement agreement with a client that restricts the lawyer’s right to practice law.
Exception: the rule does not apply to an agreement for retirement benfits.
