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1
Q

Duty of loyalty

A

– A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts.

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2
Q

if representing clients with competing interests, an attorney must (both in ABA and CA)

A

advise the parties and encourage them to seek independent counsel. The model rules encourage advisement in writing, that the client be advised of the conflict, and waive their rights related to these conflicts.

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3
Q

IN CA, DOL requires

A

In CA, writing is required when an attorney represents clients with actual or potential conflicts.

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4
Q

Duty of Confidentality

A

A lawyer must not reveal any information relating to the representation of its clients

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5
Q

Duty to report up - ABA

A

Attorney has a duty to report up any indiscretions or breaches of directors duties he discovers the directors to violate

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6
Q

Duty to report up - CA

A

there is no duty to report up indiscretions or breaches of directors duties A may discover

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7
Q

Duty of competence

A

A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

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8
Q

A lawyer can make himself competent through

A

reasonable preparation or by associating with a lawyer of established competence in the field.

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9
Q

Duty of competence - CA

A

a lawyer must not intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence.

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10
Q

ABA duty of confidentality can disclose when

A

ABA – a lawyer may disclose confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent certain death or substantial bodily injury or fraud by the client that will result in a substantial financial injury, or to secure legal advice about compliance.

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11
Q

CA duty of confidentiality can disclose when

A

In CA, a lawyer may, but is not required to disclose confidential information to prevent a crime that will likely result in death or substantial bodily injury, and also, has a duty to attempt to dissuade and inform client that the attorney will inform the authorities. Compelled by court laws

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12
Q

Formation of client relationship

A

A lawyer-client relationship is formed when a person seeks legal services from a lawyer and the lawyer either manifests consent or fails to manifest lack of consent, and knows or should know the client reasonably relies on their services.

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13
Q

client - attorney relationship

A

When directed by a client to violate an ethical rule, the lawyer must explain why they can’t comply. If the client insists, the lawyer must withdraw.

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14
Q

Allocation of authority in client - attorney relationship

A

ABA and CA - The client controls the objectives of representation, and the lawyer controls the legal and tactical means of achieving those objectives.

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15
Q

Potential COI DEF

A

Occurs when the lawyer suspects a conflict however representation is not materially limited.

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16
Q

Potential COI - ABA vs CA

A

ABA does not require informed written consent but CA does

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17
Q

COI - Current clients

A

Exists if the representation is directly averse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties

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18
Q

How do you get around a current client COI

A

a) the lawyer must reasonably believes he can provide competent representation; b) not prohibited by law; c) two party opponents are not represented by the same lawyer; and d) each client gives informed consent in writing.

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19
Q

Conflict of interest - Concurrent clients CA needs

A

both disclosure and consent to be in writting

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20
Q

Former Clients - COI

A

A lawyer who has previously represented a client must not later represent another person in the same
or substantially similar matter if that person’s interests are materially adverse to the former client’s
interests unless:
• Model Rules: The former client gives informed consent confirmed in writing; or
• CA Rules: The former client gives informed written consent.

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21
Q

Business transcation with client

A

A business transaction between a lawyer and current client is only permitted if: 1) all terms are fair and reasonable to the client; 2) the terms are fully disclosed in writing; 3) the client is advised to consult with outside counsel in writting and is given reasonable opportunity to do so; and 4) the client consents in writing.

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22
Q

Standard for ABA withdrawl

A

a lawyer may seek to withdraw if it can be done without materially harming the client.

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23
Q

ABA withdrawl- if it will harm the client a I may only withdraw if

A

If it will harm the client, a lawyer may only withdraw if 1) the client persists in crime or fraud; 2) lawyer learns previous services were used to perpetuate crime; 3) lawyer finds course of action repugnant; 4) client fails to pay; 5) representation will lead to a financial burden on the lawyer; 6) client has made representation unreasonably difficult; and 7) other good cause.

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24
Q

CA - Withdrawal must occur if

A

he knows or should know that a client is bringing an action without probable cause, for the purpose of harassing or maliciously injuring a person.

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25
Q

Mandatory withdrawl - ABA

A

A lawyer must withdraw if 1) discharged; 2) lawyer has a limiting physical or mental condition (materially impairs representation; 3) the representation will result in a violation of an ethics rule or other law;

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26
Q

Mandatory withdrawl - CA

A

A lawyer must withdraw if 1) discharged; 2) the lawyer has a limiting physical or mental condition (in CA makes representation unreasonably difficult); 3) the representation will result in a violation of an ethics rule or other law; if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment.

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27
Q

WHat must you do in a mandatory withdrawl

A

The lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment.

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28
Q

When must you in ABA and CA required the Lawyer to obtain court approval in a mandatory withdrawal

A

if the action was already filled

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29
Q

Malpractice - ABA rule

A

Liability may not be prospectively limited, [ABA] unless C is independently represented in the
agreement. C needs written notice and reasonable opportunity to seek independent counsel before settling w/ L

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30
Q

Malpractice - CA Rule

A

Lawyer may not limit their malpractice liability

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31
Q

Duty of communication

A

– A lawyer must keep the client reasonably informed about any significant developments relating to the representation. A lawyer must promptly inform the client of any decision requiring informed consent, consult regarding objectives, and promptly comply with reasonable information requests.

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32
Q

When a settlement offer is made, the lawyer has a duty under duty to communicate to

A

convey the offer to all C’s and get agreeemnt

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33
Q

Duty to follow client’s instructions

A

L must abide by C’s decisions regarding objectives of representation and reasonably consult with C as to the means pursued. L must abide by C’s decision on whether to settle, and in criminal cases, decisions on what plea bargain to enter, whether C will testify, whether to waive jury trial

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34
Q

when the org is the client

A

If a lawyer has the organization as a client, they are not representing the individual members of the organization. This would implicate the duty of confidentiality and formation of an attorney-client relationship.

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35
Q

Duty of diligence - ABA

A

– A lawyer shall act with reasonable diligence and promptness in representing a client.

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36
Q

Duty of diligence - CA

A

a lawyer cannot intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing their client.

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37
Q

Duty of confidentiality

A

A lawyer has a duty to keep confidential all privileged information that is part of the attorney-client relationship.

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38
Q

When can you break a duty of confidentiality in ABA world

A

a lawyer may disclose confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent certain death or substantial bodily injury or fraud by the client that will result in a substantial financial injury, or to secure legal advice about compliance.

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39
Q

When can you break a duty of confidentiality - CA

A

lawyer may, but is not required to disclose confidential information to prevent a crime that will likely result in death or substantial bodily injury, and also, has a duty to attempt to dissuade, as well as inform client that the attorney will inform the authorities.

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40
Q

Duty of financial integrity

A

A lawyer owes a duty of financial integrity to their client to bill appropriately and not to co-mingle funds.

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41
Q

Reporting professional misconduct - ABA

A

A lawyer must report another lawyer or judge when the lawyer knows a lawyer/judge violated ethical rules that raises a substantial question regarding the honesty, trustworthiness or fitness of the subject lawyer.

42
Q

Exception to reporting misconduct

A

No obligation to report if learned of misconduct through AC confidence

43
Q

Reporting professional misconduct - CA

A

lawyer is not required to report known violations, but a lawyer must self-report if 1) charged with a felony; 2) convicted of a serious crime; 3) found guilty of a crime committed in professional capacity; 4) disciplined; 5) sanctioned for $1,000 or more; 6) sued for malpractice; 7) a court judgment finds the lawyer grossly incompetent or willfully misrepresented a client.

44
Q

Fee Agreements - ABA

A

A lawyer shall not charge or collect an unreasonable fee. Written fee agreements are advisable under the ABA rules. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

45
Q

Fee agreements - CA

A

A lawyer shall not charge or collect an unconscionable or illegal fee ( [so exorbitant as to shock the conscience] or illegal). Written fee agreements are mandatory in CA unless the fee is $1K or less, the work is routine, the client is a corporation, or client waives the requirement for a writing. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

46
Q

Unreasonable fee factors for fee agreements - ABA

A

novelty and difficulty of legal issues, time limitation, nature of relationship w/ client, experience, contingency,

47
Q

Unconscionable factors for fee agreements - CA

A

amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee]

48
Q

3rd party payments

A

Allowing a third party to pay for legal fees is permissible, as long as such agreement prohibits the third party from controlling the course of the representation. The third party has no privilege to be apprised of the case or of any confidential communication. Here, the client must give informed consent.

49
Q

3rd party payments in CA must be in

A

writing

50
Q

Fee sharing - ABA

A

Fees can be shared between lawyers not in the same firm if 1) the division is proportionate to the service provided; 2) the client consents in writing; 3) total fees are reasonable.

51
Q

Fee sharing - CA

A

in addition to the ABA rules, CA requires 1) the fees cannot be increased because of the division; and 2) the fees aren’t unconscionable.

52
Q

Gifts

A

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer is related to the client.

53
Q

Referrals - ABA

A

a lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients.

54
Q

Referrals - CA

A

referral fees can be paid if the client 1) consents in writing; 2) the fee does not increase cost to client; and 3) if not unconscionable.

55
Q

Advance of expenses

A

Under both ABA and CA rules a lawyer may advance litigation expenses. The agreement must be in writing and must state that the advance is a loan requiring repayment.

56
Q

Advance of expenses - CA exception

A

lawyer is permitted to loan the client funds, but must have a written agreement and the loan cannot be used to entice the client to engage the lawyer’s services.

57
Q

Contingency fees

A

– These agreements state the lawyer’s fees will be paid out of any recovery the client receives. The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted.

58
Q

Contingency fee - CA rule

A

writing must include how expenses not covered in the agreement will be charged, and that fees are not set by law and negotiable. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

59
Q

Sharing fees with non lawyers

A

Fees may not be shared, and a partnership may not be made with non-lawyers if any of their activities include the practice of law.

60
Q

Solicitation

A

A lawyer or his agent cannot solicit a client by in-person, live telephone or real-time electronic contact when the significant motive is pecuniary gain. Exceptions exist for friends, family, if the solicited person is a lawyer. Comments, “I know your brother, let me handle your case,” or “call my sister” are considered inappropriate.

61
Q

Assisting Non-lawyers in unauthorized practice of law - ABA

A

A lawyer who assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.

62
Q

Assisting Non-lawyers in unauthorized practice of law - CA

A

a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney to engage in the practice of law, but can hire them to perform para-legal duties.

63
Q

Duty of candor - ABA

A

A lawyer cannot engage in conduct involving dishonesty or fraud. A lawyer cannot knowingly make a false statement, fail to correct a false statement, fail to disclose controlling legal authority known to be adverse or offer evidence known to be false.

64
Q

Duty of candor - CA

A

lawyer is required to employ only means consistent with the truth, and never seek to mislead any judicial officer with false statements.

65
Q

duty of candor remedial measures - ABA

A

If a lawyer knows of false testimony elicited from a client during a deposition, the lawyer must 1)take reasonable measures to remonstrate the client confidentially; 2) advise the client of the lawyer’s duty of candor and 3) seek the client’s assistance to correct.

66
Q

duty of candor remedial measures - CA

A

during criminal trials, the lawyer may allow the client to testify in the narrative without disclosing perjury.

67
Q

Witness Perjury - ABA

A

A lawyer cannot call a witness that he knows will commit perjury. If the defendant in a criminal trial insists on testifying to false information, first, try to persuade them not to; second, attempt to withdraw, third, ABA – tell the court.

68
Q

For witness perjury in CA, the lawyer must

A

allow the defendant to testify in narrative fashion.

69
Q

Frivolous claims

A

A lawyer has a duty to investigate the claims or defenses filed on behalf of a client and cannot file frivolous claims or defenses with the court.

70
Q

duty of fairness to adversaries

A

When a lawyer knows that a person is represented by counsel in a matter, the lawyer cannot speak to the person concerning the matter unless 1) the lawyer has permission from the person’s lawyer; 2) authorized by law or court order; or 3) it is a public official, board committee or body (CA Only).

71
Q

Inadvertent reciepts of docs

A

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender.

72
Q

Sexual relationship

A

A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

73
Q

trial publicity

A

A lawyer shall not make extrajudicial statements that the lawyer knows or should know will be disseminated publicly and are likely to materially prejudice the case.

74
Q

exceptions to the trial publicity

A

statements to limit adverse publicity; when limited to the claim, defense of identification of person; when in a public record; warning of danger; or information necessary for apprehension.

75
Q

Ex Parte communications with the judge

A

A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, except for logistics and emergency information.

76
Q

Conduct involving deceit, fraud, misrepresentation, dishonesty

A

Under ABA rules, it is professional misconduct for a lawyer to engage in any of these activities.

77
Q

When can you gain a pecuniary interest in C’s property

A

in ABA to secure fees or contingency fees; CA does not allow this

78
Q

Duties to tribunal - Criminal prosecutor

A

Must have probable cause to bring charges, make reasonable efforts to protect Δ’s right to counsel, refrain from extrajudicial comments biased against Δ, disclose mitigating evidence to Δ, and
[CA] when prosecutor knows of new evidence creating reasonable likelihood that Δ did not commit the offense, promptly disclose to court (if conviction was obtained in prosecutor’s jurisdiction, promptly disclose evidence to Δ)

79
Q

Lawyer as a witness

A

L may not be a witness and advocate, unless there is: uncontested matter, explanation of nature
and value of legal services, substantial hardship on C, or [CA] client IWC

80
Q

Duty of fairness to opposing party

A

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

81
Q

duty not to tamper with evidence

A

L may not alter, destroy, or hide evid. or witnesses from opposing party

82
Q

Duty to produce incriminating evidence

A

L who receives incriminating evidence from C must turn it over

83
Q

duty to expedite litigation

A

L must make reasonable efforts to expedite litigation

84
Q

Witness

A

L may not threaten criminal, administrative, or disciplinary charges to gain advantage in civil case L may not bribe witnesses. L may provide reasonable expenses, reasonable lost wages, reasonable expert
witness fees, but these compensations cannot be contingent on content of testimony

85
Q

Unrepresented other party

A

L may communicate with 3P only if L does not imply impartiality, explains role if necessary, and
does not give advice other than to get counsel if L knows C’s interests have reas. chance of being adverse to 3P

86
Q

CA presumed violation with advertisement

A

testimonials (unless disclaimer), guarantees, predictions, implied affiliations

87
Q

CA rule regarding Runner / Capper

A

Cannot give anything of value to a person for recommending the lawyer or
services, or reward a person for a rec made that resulted in employment, except for reas media cost

88
Q

Bar admission

A

On the application for admission to the bar, a member is prohibited from making a false statement of or knowingly fail to disclose material facts. May not further an application of one who he knows to be unqualified

89
Q

Vicarious responsbility

A

A lawyer must supervise subordinates and make reasonable efforts to ensure compliance

90
Q

Supervisor responsbility

A

responsible for another lawyer if he 1) orders misconduct, 2) ratifies misconduct (approve after finding subordinate’s misconduct), or 3) fails to remedy (stop, prevent, dissuade)

91
Q

Subordinate I

A

is not protected from discipline, unless following supervisor’s directions that were a reasonable resolution of an arguable question of PR ethics. If supervisor is patently wrong, no protection

92
Q

A Lawyer having direct supervisory authroity over a non-lawyer

A

must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer

93
Q

Sale of the law practice - ABA

A

A law practice may be sold, only if 1) notice to client (regarding sale, right to select own counsel), 2) confidentiality and COI rules still apply, and 3) fees do not increase because of sale

94
Q

Sale of law of practice - CA

A

substantially all of) practice must be sold. Must cease practicing law in the geographic area

95
Q

Partnership

A

May not form a partnership with a non-lawyer if any activity of venture constitutes the practice of law

96
Q

Grounds for discipline after admission - ABA

A

A lawyer may not violate the rules or knowingly assist or induce others, or commit a criminal act or engage in conduct that reflects dishonesty

97
Q

Grounds for discipline after admission - CA

A

L may not commit felony, crime, or act involving “moral turpitude, dishonesty or corruption”

98
Q

Duty to not engage in unauthorized practice of law

A

L cannot engage or aid in the unauthorized practice of law (doing things “that call for the professional judgment of a lawyer,” e.g., negotiation, settlement, execution)

99
Q

Non L’s may do

A

non-attorney work like research, drafting, clerical, billing

100
Q

CA rule regarding unauthorized practice of law

A

L may hire and properly supervise a disbarred, suspended, resigned, or involuntarily inactive member
to do non-attorney work. Hiring L must serve written notice to the State Bar and client

Bar prep vs2 (16 decks)

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