PR - CA and ABA (Main Deck)* Flashcards
WHEN APPROACHING A PROFESSIONAL RESPONSIBILITY QUESTION, WHAT 4 STEPS SHOULD YOU WALK THROUGH?
STEP 1: CONSIDER THE LAWYER’S DUTIES TO THE CLIENT
STEP 2: CONSIDER THE LAWYER’S DUTIES TO OTHERS
STEP 3: CONSIDER THE LAWYER’S DUTIES OF PROFESSIONAL INTEGRITY
STEP 4: CONSIDER THE DUTIES ACCOMPANYING THE BUSINESS OF LAW
STEP 1 -
DUTIES TO CLIENT:
LIST 7 DUTIES LAWYERS OWE THEIR CLIENTS
1) Duty of Loyalty
2) Duty of Confidentiality
3) Duty of Diligence
4) Duty of Competence
5) Duty to Advise
6) Duty to Communicate
7) Duty of Fairness and Integrity
DUTY OF LOYALTY
(State the Rule)
Rule (ABA & Cal):
A lawyer owes a duty of loyalty to her clients and must not represent a client if doing so would create a conflict of interest.
LIST 3 TYPES OF CONFLICTS A LAWYER MUST BE AWARE OF
1) Actual Conflicts
2) Potential Conflicts
3) Imputed Conflicts
ACTUAL CONFLICT
(Define)
Definition: An actual conflict exists if:
- The representation of one client will be directly adverse to the interests of another client, OR
- A significant risk exists that the representation of a client will be materially limited by:
- a) The lawyer’s responsibilities to another client, a former client, or a third person. OR
- b) By a personal interest of the lawyer.
POTENTIAL CONFLICT
(Define)
Definition: A potential conflict exists when circumstances specific to the case present a reasonable likelihood that an actual conflict of interest will arise.
IMPUTED CONFLICT
(Define & State the Rule)
Definition: An imputed conflict is one in which a lawyer’s conflict of interest is imputed to associated lawyers.
Rule (ABA & Cal): Lawyers working in the same firm or department as a lawyer who is disqualified due to a conflict of interest are also disqualified from representation unless:
- The organization obtains the informed, written consent of all affected clients, OR
- Where applicable, an ethical wall is erected.
Rule (Cal): California extends this rule to impute conflicts to lawyers who have a close, personal, continuous, and regular relationship with a disqualified lawyer. Note: Imputed conflicts are based on the presumption that associated lawyers share confidential information with one another.
ETHICAL WALL
(Define & State the Rule)
Definition: An ethical wall is a remedial tool that can prevent disqualification of attorneys to whom a conflict of interest would otherwise be imputed.
Rule: Erecting an ethical wall requires:
- The physical, geographic, and/or departmental separation of attorneys,
- Establishing sanctions for discussing confidential matters with the disqualified attorney,
- Establishing rules and procedures to prevent access to confidential information and files,
- Establishing procedures to prevent the disqualified attorney from sharing in the profits from the representation, AND
- Continuing education in professional responsibility.
WHAT TYPES OF CONFLICTS WILL NOT BE IMPUTED TO ASSOCIATED LAWYERS?
1) Conflicts stemming from a lawyer’s personal interests,
2) Conflicts stemming from a lawyer’s personal relationship with opposing counsel,
3) Conflicts stemming from a lawyer’s sexual relations with a client,
4) Conflicts stemming from prior or current government sen/ice,
5) In some cases, conflicts stemming from prospective clients.
a) Note: ABA rules dictate specific procedures that, if followed, can prevent a lawyer’s disqualification due to information obtained from a prospective client from being imputed to associated lawyers.
DUTY OF LOYALTY:
BETWEEN WHOM MAY CONFLICTS OF INTEREST ARISE?
1) Lawyer and Client
2) Lawyer and Other Party’s Attorney
3) Lawyer and Third Parties
4) Current, Former and Prospective Clients
5) Clients and Third Parties
6) Organizations and Constituents
LAWYER & CLIENT:
CONFLICTS TO AVOID
(State the Rule)
Rule (ABA & Cal): A lawyer must not enter into a business relationship with a client or knowingly acquire an ownership, possessory, or other pecuniary interest adverse to the client unless:
1) The terms of the transaction are fair and reasonable to the client,
2) The terms are fully disclosed in writing in a manner that is reasonably understandable by the client,
3) The lawyer advises the client in writing that the client may seek the advice of an independent lawyer,
4) The client is given a reasonable opportunity to do so, AND
5) The client consents in writing to the terms of the transaction.
LAWYER & CLIENT:
HOW IS DECISION-MAKING POWER ALLOCATED BETWEEN THE LAWYER AND CLIENT?
Client’s Power (ABA):
1) In both civil and criminal cases, a lawyer must honor the client’s decisions regarding:
a) The objectives of representation, AND
b) Whether to settle a matter.
2) In a criminal case, a lawyer must also honor the client’s decisions regarding:
a) What plea to enter,
b) Whether to waive jury trial, AND
c) Whether the client will testify.
Lawyer’s Power (ABA): The lawyer, after consulting with the client, will determine the means by which the client’s objectives will be pursued.
LAWYER & OTHER PARTY’S ATTORNEY:
CONFLICTS TO AVOID
(State the Rule)
Rule (Cal): A lawyer must not represent a client in a matter if another party’s attorney:
1) Is related to the lawyer (i.e., spouse, parent/child or sibling),
2) Lives with the lawyer,
3) Is a client of the lawyer, OR
4) Shares an intimate personal relationship with the lawyer.
Exception: The lawyer may represent the client if he informs the client in writing of the relationship.
LAWYER & THIRD PARTIES OR WITNESSES:
CONFLICTS TO AVOID
(State the Rule)
Rule (Cal): A lawyer cannot accept or continue representation of a client if:
1) The lawyer has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter,
2) The lawyer previously had such a relationship with a party or witness, and that relationship would substantially affect the attorney’s representation,
a) Note: This includes relationships the lawyer should reasonably know of.
3) The lawyer has or had such a relationship with a third party whose interests the lawyer knows would be substantially affected by the outcome, OR
4) The lawyer has or had a legal, business, financial, or professional interest in the subject matter of the representation.
Exception: The lawyer may continue representation if she informs the client in writing of the relationship.
CONFLICTS OF INTEREST BETWEEN CLIENTS
(State the Rule)
Rule (ABA): A lawyer cannot represent more than one client in a matter that involves an actual conflict of interest unless:
1) The lawyer reasonably believes she can provide competent and diligent representation to all affected clients,
2) The representation is not prohibited by law,
3) The lawyer is not representing one client against another in the same trial, AND
4) Each affected client gives informed, written consent.
Rule (Cal): A lawyer cannot accept representation of more than one client in a matter in which the interests of the clients actually or potentially conflict unless the lawyer obtains the informed, written consent of each client.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
AGGREGATE SETTLEMENTS
(State the Rule)
Rule (Cal): An attorney who represents multiple clients must have the informed, written consent of all clients before entering into an aggregate settlement agreement of a claim.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
FORMER CLIENTS
(State the Rule)
Rule (ABA): A lawyer who has represented a client in a matter cannot later represent another person in the same or substantially related matter if the clients’ interests are materially adverse unless the former client gives informed, written consent.
Rule (Cal): A lawyer must not accept employment adverse to a former client if the lawyer has obtained confidential information material to the employment due to her representation of the former client unless the former client gives informed, written consent.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
WHAT IS THE TEST TO DETERMINE IF A LAWYER HAS OBTAINED DISQUALIFYING INFORMATION FROM A FORMER CLIENT?
Rule (Cal): A lawyer is found to possess confidential information adverse to a former client and is disqualified from accepting representation of a prospective client whose interests are adverse if a substantial relationship exists.To determine whether a substantial relationship exists, courts look to:
1) Factual similarity of the cases,
2) Legal similarity of the cases, AND
3) Nature and extent of the lawyer’s involvement in the prior representation.
CONFLICTS FACED BY FORMER & CURRENT GOVERNMENT EMPLOYEES
(State the Rule)
Former Government Employees (ABA): A lawyer who has formerly served as a public officer or employee of the government must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency gives informed, written consent.
Current Government Employees (ABA): A lawyer currently serving as a publicofficer or employee must not:
1) Participate in a matter in which thelawyer participated personally and substantially while in private practiceunless the appropriate government agency gives informed, written consent,OR
2) Negotiate for private employment witha party or an attorney involved in amatter in which the lawyer is participating personally and substantially,
a) Exception: A lawyer clerking for a judge may negotiate for private employment if the lawyer notifies the judge of his actions.
WHAT IS THE RULE FOR IMPUTED CONFLICTS DUE TO A LAWYER’S FORMER GOVERNMENT SERVICE?
Rule (ABA): When a lawyer is disqualified from representation due to former government service, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation of the client unless:
1) The disqualified lawyer is screened from any participation in the matter,
2) The disqualified lawyer is apportioned no part of the fee from the matter, AND
3) Written notice is promptly given to the appropriate government agency.
PROSPECTIVE CLIENT
(Define)
Definition (ABA): A prospective client is a person who discusses with a lawyer the possibility of forming an attorney-client relationship with respect to a matter.
PROSPECTIVE CLIENTS:
WHAT IS A LAWYER’S DUTY TO PROSPECTIVE CLIENTS?
Rule (ABA): Even if no attorney- client relationship is formed, a lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter unless both the current and prospective clients give informed, written consent.
CONFLICTS BETWEEN CLIENTS OF THE LAWYER’S FORMER FIRM & THE LAWYER’S PROSPECTIVE CLIENTS
Rule (ABA): If, while employed by a firm, a lawyer acquired material and confidential information about a client whose interests are materially adverse to those of the lawyer’s prospective client, the lawyer may not accept representation unless the former client provides informed, written consent.
PROSPECTIVE CLIENTS:
IS A LAWYER’S DISQUALIFICATION DUE TO A PROSPECTIVE CLIENT IMPUTED TO THE LAWYER’S CURRENT FIRM?
Rule (ABA): If a lawyer is disqualified due to having received information from a prospective client, no lawyer in a firm affiliated with the disqualified lawyer may knowingly undertake or continue representation in the matter, unless:
1) Both clients give informed, written consent, OR
2) The disqualified lawyer took reasonable measures to avoid exposure to more information than was reasonably necessary to determine whether to represent the prospective client, AND
a) The disqualified lawyer is screened from any participation in the matter,
b) The disqualified lawyer receives no fee from the matter, AND
c) Written notice is promptly given to the prospective client.
CLIENTS & THIRD PARTIES:
PAYMENT FOR ATTORNEY’S SERVICES
(State the Rule)
Rule (ABA): A lawyer must not allow a third party who pays for representation of a client to interfere with the lawyer’s professional judgment.
Rule (Cal): A lawyer cannot accept compensation for representing a client from a third party unless:
1) The lawyer exercises independent professional judgment free of influence from the third party in the client’s case,
2) The lawyer maintains the confidentiality of the client, AND
3) The client gives informed, written consent.
TO WHAT/WHOM ARE DUTIES OWED WHEN A LAWYER REPRESENTS AN ORGANIZATION?
Rule (ABA & Cal): When a lawyer represents an organization, the lawyer’s client is the organization itself. Thus, the lawyer’s duties are owed to the organizational entity, not its individual members.
Note:
1) Organizations are represented by or act through’ authorized constituents.
2) An organization’s constituent can be an officer, employee, or decision-making body within the organization, so long as the person/entity is authorized to represent the organization in a given matter.
REPRESENTING ORGANIZATIONS:
UNDER ABA RULES, WHAT SHOULD A LAWYER DO IF AN AGENT OF THE ORGANIZATION INTENDS TO HARM OR HAS HARMED THE ORGANIZATION?
Rule (ABA): The lawyer must act in the best interest of the organization. If a lawyer finds that an agent has acted or intends to act in a manner that is harmful to the organization (i.e., either directly or by violating the law while acting in a representational capacity), the lawyer should:
Step 1: First, report the activity to the next highest authority in the organization.
Step 2: If no action is taken to halt or rectify the harm, the lawyer should report the activity to the next highest authority in the organization, continuing up the chain of command until remedial action is taken.
Step 3: If, having reached the highest authority in the organization, no effort has been made to halt or rectify a clearly illegal activity, the lawyer may reveal information normally protected by the duty of confidentiality to a third party, but only to the extent necessary to prevent substantial injury to the organization.
REPRESENTING ORGANIZATIONS:
UNDER CALIFORNIA RULES, WHAT SHOULD A LAWYER DO IF AN AGENT OF THE ORGANIZATION INTENDS TO HARM OR HAS HARMED THE ORGANIZATION?
Rule (Cal): The lawyer must act in the best interest of the organization. If a lawyer finds that an agent has acted or intends to act in a manner that would harm the organization (i.e., either directly or by violating the law while acting in a representational capacity), the lawyer should:
Step 1: First, urge the party to reconsider the activity and explain its likely effect upon the organization.
Step 2: If the agent continues to engage inthe harmful activity, the lawyer shouldreport the matter to the next highestauthority, continuing to the highestauthority within the organization if remedialor preventive action is not taken.
Step 3: If the highest authority in the organization refuses to halt or rectify the illegal and harmful activity, the lawyer’s only option is to resign.
REPRESENTING ORGANIZATIONS:
WHAT ARE A LAWYER’S DUTIES TO THE ORGANIZATION VERSUS THE ORGANIZATION’S CONSTITUENTS?
Rule (ABA & Cal): A lawyer must make clear to an organizational client’s constituents that the client is the organization if it appears that an actual or potential conflict of interest exists between the organization and its constituents.
Rule (Cal): The lawyer must also make clear to constituents that information given by them will be used in the organization’s best interest should a conflict of interest arise.
WITHDRAWAL FROM REPRESENTATION:
UNDER ABA RULES, WHEN MAY A LAWYER VOLUNTARILY WITHDRAW FROM REPRESENTATION?
Rule (ABA): A lawyer may withdraw from representation if:
1) Withdrawal can be accomplished without materially and adversely affecting the client’s interests,
2) The client has used or is using the lawyer’s services to commit a crime or fraud,
3) The lawyer fundamentally disagrees with clients’ actions or finds them repugnant,
4) The representation will cause an unreasonable financial burden on the lawyer,
5) The representation has been made unreasonably difficult by the client, OR
6) The client substantially fails to fulfill an obligation to the lawyer.
WITHDRAWAL FROM REPRESENTATION:
UNDER CALIFORNIA RULES, WHEN MAY A LAWYER VOLUNTARILY WITHDRAW FROM REPRESENTATION?
Rule (Cal): A lawyer may withdraw from representation if:
1) The client insists on presenting a claim or defense that cannot be supported by a good faith argument,
2) The client seeks to pursue an illegal course of conduct,
3) The client’s conduct makes it unreasonably difficult for the attorney to represent,
4) The client breaches an agreement regarding fees or expenses,
5) The client demands the attorney commit an illegal or unethical act,
6) Continued employment is likely to result in a violation of the professional code,
7) The client demands the lawyer act in a way that is against the lawyer’s judgment,
8) The lawyer’s mental or physical condition makes it difficult to effectively represent,
9) The client knowingly and willingly assents to terminating representation, OR
10) The lawyer believes in good faith the court will agree another good cause for withdrawal exists.
WITHDRAWAL FROM REPRESENTATION:
WHEN MUST A LAWYER WITHDRAW FROM REPRESENTATION?
Rule (ABA): A lawyer must withdraw from representation if:
1) Continuing representation will result in a violation of the Rules of Professional Conduct,
2) The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, OR
3) The lawyer is fired.
Rule (Cal): A lawyer must withdraw from representation if:
1) Continuing representation will resultin a violation of the Rules of Professional Conduct and the lawyerknows/should know of this result,
2) The lawyer’s physical or mental condition renders it unreasonablydifficult to represent the client, OR
3) The lawyer knows the client ispursuing legal action to harass ormaliciously injure another person.
WHAT ARE A LAWYER’S DUTIES UPON TERMINATION OF REPRESENTATION?
Rule (ABA & Cal): A lawyer has a duty to mitigate adverse consequences of withdrawal. Upon termination of representation, a lawyer must take reasonable steps to protect a client’s interests by:
1) Providing reasonable notice to the client,
2) Allowing the client adequate time to find other counsel,
3) Returning papers and property to the client, AND
4) Refunding any advance payment of fee or expense that has not been earned.
DUTY OF CONFIDENTIALITY
(State the Rule)
Rule (ABA & Cal): A lawyer owes a duty of confidentiality to her client.
ABA: A lawyer must not reveal information relating to the representation of a client, regardless of when or from where the information was acquired, unless:
1) The client gives informed consent,
2) The disclosure is impliedly authorized in order to carry out the representation, OR
3) Disclosure is permitted by an exception to the duty.
Cal: A lawyer must maintain inviolate the confidence and at every peril to herself preserve the secrets of her client unless:
1) The client gives informed consent, OR
2) Disclosure is permitted by an exception to the duty.
UNDER ABA RULES, WHAT ARE THE EXCEPTIONS TO A LAWYER’S DUTY OF CONFIDENTIALITY TO THE CLIENT?
Rule (ABA): A lawyer may reveal information relating to the representation of a client to the extent reasonably necessary to:
1) Prevent reasonably certain death or substantial bodily harm,
2) Prevent the client from committing a crime or fraud that will likely result in substantial financial loss to another,
3) Mitigate harm caused by the client’s crime or fraud (if the client is using/has used the lawyer’s services to commit the crime or fraud),
4) Obtain legal advice about the lawyer’s compliance with ethics rules,
5) Establish the lawyer’s claim or defense in a dispute between the lawyer and client or in a claim in which the client was involved,
6) Respond to allegations concerning the lawyer’s representation, OR
7) Comply with a court order.
UNDER CALIFORNIA RULES, WHAT ARE THE EXCEPTIONS TO A LAWYER’S DUTY OF CONFIDENTIALITY TO THE CLIENT?
Rule (Cal): A lawyer may reveal confidential information relating to the representation of a client to the extent the lawyer reasonably believes is necessary to prevent a criminal act that is likely to result in death or substantial bodily harm.
WHAT SHOULD A LAWYER DO BEFORE DISCLOSING CONFIDENTIAL INFORMATION?
Rule (Cal): Before revealing confidential information to prevent a criminal act that would likely result in death or substantial bodily harm, a lawyer must, if reasonable under the circumstances, make a good faith effort to persuade the client not to commit or continue the criminal act.
WHAT SHOULD A LAWYER CONSIDER WHEN DECIDING WHETHER TO DISCLOSE CONFIDENTIAL INFORMATION?
Rule (Cal): When deciding whether to disclose confidential information to prevent the commission of a violent criminal act, a lawyer should consider:
1) The amount of time the lawyer has to make the decision,
2) Whether the client has made similar threats before,
3) Whether the client has ever acted or attempted to act on them,
4) Whether the lawyer believes her efforts to persuade the client not to engage in criminal conduct have been successful,
5) The extent to which the client’s constitutional rights will be adversely affected by the disclosure,
6) Other adverse effects to the client,
7) The extent of information that must be disclosed, AND
8) The imminence of the prospective harm to the victim.
DUTY OF CONFIDENTIALITY:
FORMER CLIENTS
(State the Rule)
Rule (ABA): A lawyer owes a continuing duty of confidentiality to former clients. A lawyer may not reveal information relating to his representation of a client, even after the representation has terminated, unless:
1) The lawyer obtains informed consent of the client. OR
2) The information has become generally known.
A DUTY OF CONFIDENTIALITY:
PROSPECTIVE CLIENTS
(State the Rule)
Rule (ABA): Even if no attorney- client relationship is formed, a lawyer cannot use or reveal information learned during a consultation with a prospective client except to the extent necessary to determine if a conflict with a former client may arise.
DISTINGUISH BETWEEN THE ATTORNEY-CLIENT PRIVILEGE & THE DUTY OF CONFIDENTIALITY
Attorney Client Privilege: The Attorney-Client Privilege is an evidentiary rule that ensures a lawyer will not be compelled to disclose information communicated by the client to the lawyer during the course of their relationship.
Duty of Confidentiality: The Duty of Confidentiality is broader than the attorney-client privilege and prohibits the disclosure of all information relating to the representation, regardless of the source of the information or when the lawyer received the information.
DUTY OF DILIGENCE
(State the Rule)
Rule (ABA): A lawyer must act with reasonable diligence and promptness in representing a client.
DUTY OF COMPETENCE
(State the Rule)
Rule (ABA): A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule (Cal): A lawyer must not intentionally, recklessly, or repeatedly fail to represent a client with competence. Competence requires the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for such representation.
DUTY OF COMPETENCE:
CAN A LAWYER ACCEPT A CLIENT IF THE LAWYER LACKS SUFFICIENT LEARNING AND SKILL?
Rule (Cal): If a lawyer lacks sufficient learning and skill, the lawyer may nonetheless provide competent representation by:
1) Associating with or consulting a reasonably competent lawyer, OR
2) Acquiring sufficient learning and skill by researching the issue before performance is required.
Note: In cases of emergency, California allows attorneys to provide advice or assistance in matters in which the lawyer may not have the requisite skill to perform competently.
DUTY TO ADVISE
(State the Rule)
Rule (ABA): A lawyer must exercise independent professional judgment and render candid service.
ABA:
DUTY TO COMMUNICATE
(State the Rule)
Rule (ABA): A lawyer must:
1) Keep the client reasonably informed about the status of the case,
2) Promptly comply with reasonable requests for information from the client,
3) Consult with the client about the means by which the lawyer will pursue the client’s objectives,
4) Promptly inform the client of any circumstances which require the client’s informed consent,
5) Explain to the client the limitations imposed by the Rules of Professional Conduct (if client expects lawyer to act in an impermissible manner), AND
6) Explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
CALIFORNIA:
DUTY TO COMMUNICATE
(State the Rule)
Rule (Cal): A lawyer must:
1) Reasonably inform the client about significant developments in the case,
2) Promptly comply with reasonable requests for information and documents, AND
3) Promptly communicate to the client:
a) All terms and conditions of any offer made to the client in a criminal matter, AND/OR
b) All amounts, terms, and conditions of any written settlement offer made to the client in a civil matter.
DUTY OF FAIRNESS & INTEGRITY:
WHAT ISSUES SHOULD YOU CONSIDER WHEN PONDERING A LAWYER’S DUTY OF FAIRNESS AND INTEGRITY?
1) Attorney Fees
2) Fee Agreements
3) Contingency Fees
4) Payment of Client Expenses
5) Gifts from Client
6) Safekeeping Client’s Property
7) Malpractice Issues
8) Sexual Relations with a Client
DUTY OF FAIRNESS & INTEGRITY:
ATTORNEY FEES
(State the Rule)
Rule (ABA): A lawyer must not make an agreement for, charge, or collect an unreasonable fee or unreasonable amount for expenses.
Rule (Cal): A lawyer must not make an agreement for, charge, or collect an illegal or unconscionable fee.
WHAT FACTORS ARE CONSIDERED IN DETERMINING THE REASONABLENESS OR CONSCIONABILITY OF ATTORNEY FEES?
Rule (ABA & Cal): To determine the reasonableness/conscionability of attorney fees, courts look to:
1) The time and labor required of the lawyer,
2) The novelty and difficulty of the questions involved,
3) The skill required to perform the legal service properly,
4) The likelihood that accepting the case will preclude other employment by the lawyer,
5) The time limitations imposed by the client or by the circumstances,
6) The amount involved and the results obtained,
7) The nature and length of the relationship with the client,
8) The experience, reputation, and ability of the lawyer, AND
9) Whether the fee is fixed or contingent.
ABA (not California) also considers:
1) The fee customarily charged in the locality for similar legal services.
California (not ABA) also considers:
1) The amount of the fee relative to the value of services performed,
2) The relative sophistication of the lawyer and the client, AND
3) The informed consent of the client to the fee.
WHAT REQUIREMENTS MUST BE MET WHEN ENTERING INTO A FEE AGREEMENT OF MORE THAN $1,000?
Rule (Cal): If it is reasonably foreseeable that the total expense to a client, including attorney fees, will exceed $1,000, the contract for services must be in writing and must contain:
1) The basis of compensation (e.g., hourly rates, flat fees),
2) The general nature of the legal services to be provided to the client, AND
3) The respective responsibilities of the attorney and the client.
WHEN ARE FEE AGREEMENTS NOT REQUIRED TO BE IN WRITING?
Rule (Cal): Fee agreements are not required to be in writing if:
1) No reasonable expectation exists that the client’s total expense will exceed S1.000,
2) The lawyer’s services were provided to avoid prejudice to the client’s rights in an emergency,
3) The client has previously used the lawyer for the same general services,
4) The client provided informed, written consent that a written fee agreement is not required, OR
5) The client is a corporation.
WHAT IS REQUIRED TO CREATE A VALID CONTINGENCY FEE AGREEMENT?
Rule (ABA & Cal): A contingent fee agreement must:
1) Be in writing,
2) Be signed by the client,
3) State the method by which the fee will be computed, including the percentage that will be paid to the lawyer in the event of settlement, trial, or appeal,
4) Identify expenses that will be deducted from the recovery,
5) Explain whether expenses will be deducted before or after the fee is calculated, AND
6) Clearly identify any expenses the client will have to pay regardless of outcome.
California (not ABA) also requires:
1) That a copy of the agreement be given to the client, AND
2) The inclusion of a statement that the fee is not set by law, but is open to negotiation between the client and lawyer.
Exception (Cal): If the client is a plaintiff ina medical malpractice case, theagreement must explain the statutory maximum that the lawyer can take but that the client may negotiate lower rates.
Note: Upon conclusion of a contingency fee case, the lawyer must, in writing, inform the client of the outcome and explain how fees were calculated if the client wins the case.
IN WHAT TYPES OF CASES ARE CONTINGENCY FEES PROHIBITED?
Rule (ABA): A lawyer cannot enter into a contingency fee agreement in:
1) Domestic relations cases, if the fee is contingent upon securing a divorce, the amount of alimony or support awarded, or property settlement obtained, AND/OR
2) Criminal defense cases.
DUTY OF FAIRNESS & INTEGRITY:
PAYMENT OF CLIENT EXPENSES
(State the Rule)
Rule (ABA): A lawyer cannot provide financial assistance to a client in connection with pending or contemplated litigation.
Exception: A lawyer can:
1) Advance court costs and expenses of litigation, with repayment contingent upon the outcome of the case,
2) A lawyer representing an indigent client may pay court costs and expenses on behalf of the client.
Rule (Cal): A lawyer cannot pay or agree to pay the personal or business expenses of a prospective or existing client.
Exception: A lawyer can:
1) With the client’s consent, pay money owed to third persons from funds collected on the client’s behalf as a result of the representation,
2) After being hired, loan money to client for any purpose so long as client provides lawyer with a written promise to return the money,
3) Advance the costs of litigation or preparation for litigation, with repayment contingent upon the outcome of the case.
DUTY OF FAIRNESS & INTEGRITY:
GIFTS FROM CLIENT
Rule (ABA & Cal): A lawyer must not:
1) Induce a client to make a substantial gift, including a testamentary gift, to lawyer or lawyer’s family,
a) Note: The lawyer’s family is defined as:
i) ABA: Anyone with whom the lawyer maintains a close, familial relationship.
ii) Cal: The lawyer’s parent, child, sibling, or spouse.
2) Prepare on behalf of a client an instrument giving the lawyer or the lawyer’s relative a substantial gift.
Exception: Such gifts are permissible if the lawyer and client are related.
DUTY OF FAIRNESS & INTEGRITY:
WHAT IS A LAWYER’S DUTY REGARDING CLIENT’S MONEY AND PROPERTY?
Rule (ABA & Cal): A lawyer has a duty to preserve client’s property, which includes the duty to segregate, properly label, keep safe, and provide an accurate accounting of client’s property. A lawyer must:
1) Keep all client funds, including advance payments for attorney fees and legal expenses, in a properly labeled trust account, completely separate from lawyer’s funds,
a) Exception: A lawyer can deposit her own funds in a client trust account in an amount reasonably sufficient to pay bank service charges on the account.
2) Maintain funds over which the lawyer and client have a dispute in a separate account until the dispute is resolved,
a) ABA: Also mandates keeping funds in a separate account if the dispute is between the client and a third party.
3) Promptly notify client of the receipt of funds in which client has an interest,
4) Maintain complete records and render a full accounting of funds and property received for the client,
5) Preserve records of client account funds for five years, AND
6) Promptly deliver the funds or property the client is entitled to receive.
WHERE SHOULD CLIENT TRUST ACCOUNTS BE LOCATED?
Rule (ABA): Trust accounts must be maintained in the lawyer’s state of practice unless the client consents to maintaining the account elsewhere.
Rule (Cal): Trust accounts must be maintained in California or in a jurisdiction that has a substantial relationship with the client or client’s business.
DUTY OF FAIRNESS & INTEGRITY:
WAIVER OF MALPRACTICE LIABILITY
(State the Rule)
Rule (ABA & Cal): A lawyer cannot:
1) Contract with a client to prospectively limit the lawyer’s liability for professional malpractice, OR
a) Exception (ABA): Lawyer may enter into contract if the client is independently represented in making the agreement.
2) Settle a potential or actual malpractice claim with an unrepresented client without:
a) Informing the client in writing that the client may seek the advice of an independent attorney, AND
b) Giving the client a reasonable amount of time to do so.
DUTY OF FAIRNESS & INTEGRITY:
SEXUAL RELATIONS WITH CLIENT
(State the Rule)
Rule (ABA): A lawyer must not have sexual relations with a client unless a consensual sexual relationship existed when the client-lawyer relationship commenced.
Rule (Cal): A lawyer cannot:
1) Demand sex as a condition of representation,
2) Coerce, intimidate, or unduly influence a client to have sex, OR
3) Continue representing a client with whom the lawyer is having sex if the relationship causes the lawyer to perform legal services incompetently.
STEP 2 -
DUTIES TO OTHERS:
WHAT SHOULD YOU CONSIDER WHEN PONDERING A LAWYER’S DUTIES TO OTHERS?
1) Duties to the Court
2) Duties to Opposing Party & Counsel
WHAT SHOULD YOU CONSIDER WHEN PONDERING A LAWYER’S DUTIES TO THE COURT?
1) Duty of Candor to the Court
2) Duty of Decorum
3) Duty to Maintain the Impartiality of the Decision-Making Process
4) Trial Conduct
5) Trial Publicity
6) Attorney as Witness
DUTY OF CANDOR TO THE COURT
(State the Rule)
Rule (ABA): A lawyer must not knowingly:
1) Make a false statement of fact or law to the court,
2) Fail to correct a false statement of material fact or law previously made to the court by the lawyer,
3) Fail to disclose legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of her client,
4) Offer evidence the lawyer knows to be false.
a) Exception: In a criminal defensematter, a lawyer must allow thedefendant to testify, even if the lawyerbelieves the testimony to be false, by asking the defendant narrativequestions (e.g., “Tell us what you didthat night.*).
Rule (Cal): In presenting a matter to acourt, a lawyer:
1) Must use honest methods,
2) Must not make a false statement of fact or law,
3) Must not intentionally misquote from a book, statute, or decision,
4) Must not cite as authority a decision or statute the lawyer knows to be no longer valid (e.g., a statute that is declared unconstitutional, or an opinion that is overruled).
WHAT IS THE DIFFERENCE BETWEEN THE DUTY OF CANDOR TO THE COURT & THE DUTY OF CONFIDENTIALITY TO THE CLIENT?
The lawyer’s Duty of Candor to the court may conflict with the lawyer’s Duty of Confidentiality to the client. The ABA Model Rules of Professional Conduct explain that the Duty of Candor to the court applies even if compliance requires disclosure of information otherwise protected by the Duty of Confidentiality. Thus, if faced with a conflict between the requirements under a lawyer’s Duty of Candor to the court and his Duty of Confidentiality to the client, discuss the elements of both duties, but resolve in favor of complying with the lawyer’s Duty of Candor.
DUTY OF CANDOR TO THE COURT:
WHAT SHOULD A LAWYER DO IF, AFTER PRESENTING EVIDENCE TO THE COURT, THE LAWYER LEARNS OF ITS FALSITY?
Rule (ABA): If a lawyer or a witness called by the lawyer has offered material evidence and the lawyer later learns of its falsity, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.
DUTY OF CANDOR TO THE COURT:
HOW MUCH INFORMATION SHOULD A LAWYER REVEAL IN AN EX PARTE PROCEEDING?
Rule (ABA): In an ex parte proceeding, a lawyer must inform the court of all material facts Known to the lawyer that will enable the court to make an informed decision, whether or not the facts are adverse.
DUTY OF DECORUM
(State the Rule)
Rule (ABA): A lawyer must not engage in conduct intended to disrupt the trial.
DUTY TO MAINTAIN THE IMPARTIALITY OF THE DECISION-MAKING PROCESS:
COMMUNICATIONS WITH THE COURT, WITNESSES & JURORS
(State the Rule - ABA)
Rule (ABA): During trial, a lawyer must not:
1) Seek to influence a judge, juror or prospective juror by illegal means,
2) Communicate ex parte with a judge or juror during a proceeding unless authorized by law or court order,
3) Communicate with a juror or discharged prospective juror if:
a) The communication is prohibited by law or court order,
b) The juror has made known her desire not to communicate, OR
c) The communication involves misrepresentation, coercion, duress, or harassment. Note: California divides the duty into three categories:
1) Interaction with the Court
2) Interaction with Witnesses
3) Interaction with Jurors
DUTY TO MAINTAIN THE IMPARTIALITY OF THE DECISION-MAKING PROCESS:
INTERACTION WITH THE COURT
(State the Rule - California)
Rule 1 (Cal): A lawyer must not give or lend anything of value to a judge, official, or employee of the court unless the lawyer and recipient are family members.
Exception: Lawyers may contribute to campaign funds of judges running for election.
Rule 2 (Cal): A lawyer must not communicate with a judge or court employee about the merits of a contested matter pending before the judge or court employee except:
1) In open court,
2) With the consent of all other counsel in the matter,
3) In the presence of all other counsel in the matter,
4) In writing with a copy furnished to the other counsel, OR
5) In proper ex parte proceedings.
DUTY TO MAINTAIN THE IMPARTIALITY OF THE DECISION-MAKING PROCESS:
INTERACTION WITH WITNESSES
(State the Rule - California)
Rule (Cal): A lawyer must not:
1) Urge or advise a person to make themselves unavailable to testify as a witness, OR
2) Make payment of a witness contingent upon the witness’ testimony.
Note: A lawyer may pay:
1) Expenses reasonably incurred by a witness attending or testifying at trial,
2) Reasonable compensation to a witness for time spent attending or testifying, AND
3) A reasonable fee for the services of an expert witness.
DUTY TO MAINTAIN THE IMPARTIALITY OF THE DECISION-MAKING PROCESS:
INTERACTION WITH JURORS
(State the Rule - California)
Rule (Cal): A lawyer must observe the following requirements when interacting with jurors:
1) Before trial, a lawyer connected with a case cannot communicate directly or indirectly with anyone known to be a member of the pool from which the jury will be selected,
2) During trial, a lawyer connected with a case cannot communicate directly or indirectly with any juror,
3) During trial, lawyers unconnected to the case cannot communicate about the case with known jurors,
4) After a juror is discharged from duty, a lawyer cannot make harassing or embarrassing comments to the juror,
5) A lawyer cannot conduct an investigation into potential or chosen jurors in a way that is likely to influence the prospective or actual juror,
6) A lawyer must tell the court of a potential or actual juror’s improper conduct,
7) A lawyer must reveal improper conduct by another person toward a potential or actual juror or the juror’s family.
TRIAL CONDUCT:
MERITORIOUS CLAIMS
(State the Rule)
Rule (ABA): A lawyer must not make an argument or defense unless there is a non- frivolous basis for doing so.
TRIAL CONDUCT:
EXPEDITING LITIGATION
(State the Rule)
Rule (ABA): A lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client.
TRIAL PUBLICITY
(State the Rule)
Rule (ABA & Cal): A lawyer must not make extrajudicial statements that [ABA: the lawyer knows or reasonably should know, or Cal: a reasonable person would expect], will be disseminated through public communication channels and will have a substantial likelihood of materially prejudicing a trial.
Exception (ABA & Cal): A lawyer may publicly state:
1) The claim, offense or defense involved,
2) The identity of the people involved, to the extent allowed by law,
3) That an investigation of a matter is in progress,
4) A request for help in obtaining evidence,
5) A warning concerning the behavior of people involved, if there is a likelihood of substantial harm to a person or the public interest,
6) The scheduling or outcome of any stage in the litigation,
7) Information contained in the public record, AND/OR
8) Information that a reasonable lawyer would believe is required to protect a client from substantial undue prejudice from recent publicity not initiated by the lawyer or the lawyer’s client.
WHAT ADDITIONAL INFORMATION MAY BE COMMUNICATED PUBLICLY BY LAWYERS IN A CRIMINAL CASE?
Rule (ABA & Cal): In a criminal case, a lawyer may publicly state:
1) The identity, residence, occupation and family status of the accused.
2) Information necessary to catch an unapprehended suspect.
3) The time and place of arrest,
4) The length of the investigation, AND/OR
5) The identity of investigating and arresting officers.
CAN A LAWYER BE A WITNESS AND ADVOCATE IN THE SAME TRIAL?
Rule (ABA): A lawyer cannot act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:
1) The testimony relates to an uncontested issue,
2) The testimony relates to the nature and value of legal services rendered in the case, OR
3) Disqualification of the lawyer would cause substantial hardship to the client.
Rule (Cal): A lawyer cannot act as an advocate before a jury which will hear testimony from the lawyer unless:
1) The testimony relates to an uncontested issue,
2) The testimony relates to the nature and value of legal services rendered in the case, OR
3) The lawyer has the informed, written consent of the client.
WHAT MUST YOU CONSIDER WHEN CONTEMPLATING A LAWYER’S DUTIES TO OPPOSING PARTY & COUNSEL?
1) Duty of Fairness to Opposing Party & Counsel
2) Speaking to Represented Parties
3) Mistakenly Sent Documents
DUTY OF FAIRNESS TO OPPOSING COUNSEL
(State the Rule)
Rule (ABA & Cal): A lawyer must not:
1) Destroy, conceal or obstruct access to evidence, or advise another person to do so,
2) Falsify evidence, or advise or induce another person to do so,
3) Make frivolous discovery requests,
4) Fail to make a reasonably diligent effort to comply with a proper discovery request,
5) In trial, allude to any matter the lawyer does not reasonably believe is relevant or that is not supported by admissible evidence,
6) In trial, assert personal knowledge of facts in issue (unless testifying as a witness),
7) In trial, state a personal opinion as to the justness of a cause, the credibility of a witness, or the culpability of a defendant,
8) Ask a person other than the client to refrain from voluntarily giving information to another party, unless:
a) The person is a relative, employee,or agent of the client, AND
b) The lawyer reasonably believes theperson’s interests will not beadversely affected by refraining fromgiving such information.
Cal (not ABA): A lawyer also must not threaten criminal, administrative, ordisciplinary action to obtain an advantagein a civil dispute.
SPEAKING TO REPRESENTED PARTIES
(State the Rule)
Rule (ABA & Cal): While representing a client, a lawyer must not communicate directly or indirectly about the subject of the representation with a party the lawyer knows to be represented by another attorney in the matter, unless:
1) The lawyer obtains the consent of the other attorney, OR
2) The communication is authorized by law.
ABA: Also allows communication if counsel is authorized to communicate with a represented party by court order.
MISTAKENLY SENT DOCUMENTS
(State the Rule)
Rule (ABA): A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.
STEP 3 -
DUTIES OF PROFESSIONAL INTEGRITY:
WHAT SHOULD YOU CONSIDER WHEN PONDERING A LAWYER’S DUTIES OF PROFESSIONAL INTEGRITY?
1) Duty of Truthfulness in Statements to Others
2) Speaking to Unrepresented Parties
3) Prohibited Objectives of Employment
4) Advising Violation of the Law
5) Duty to Avoid Unauthorized Practice of Law
6) Duty to Report Professional Misconduct
7) Duty to Accept Representation
8) Pro Bono Work
9) Special Responsibilities of the Prosecutor
TRUTHFULNESS IN STATEMENTS TO OTHERS
(State the Rule)
Rule (ABA): While representing a client, a lawyer must not knowingly:
1) Make a false statement of material fact or law to a third person. OR
2) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client unless disclosure is prohibited by the lawyer’s duty of confidentiality.
SPEAKING TO UNREPRESENTED PARTIES
(State the Rule)
Rule 1 (ABA): When speaking to an unrepresented person on behalf of a client, a lawyer must not imply that she is a disinterested party.
Rule 2 (ABA): If the lawyer knows/should know the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding.
Rule 3 (ABA): If the lawyer knows/should know the unrepresented person’s interests actually or potentially conflict with the client’s interests, the lawyer must not give legal advice to the unrepresented person, other than advising her to seek counsel.
PROHIBITED OBJECTIVES OF EMPLOYMENT
(State the Rule)
Rule (Cal): A lawyer must not seek, accept, or continue employment if the lawyer knows or should know that the objective of such employment is:
1) To pursue a claim or litigation strategy without probable cause and for the purpose of harassing or maliciously injuring any person, OR
2) To present a claim or defense that is not warranted under existing law unless it can be supported by a good faith argument to extend, modify, or reverse existing law.
ADVISING VIOLATION OF THE LAW
(State the Rule)
Rule (ABA): A lawyer must not advise a client to engage in conduct the lawyer knows to be criminal or fraudulent. Note: A lawyer may:
1) Discuss the legal consequences of any proposed course of conduct with a client,
2) Counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.
Rule (Cal): A lawyer must not advise a client to violate the law or a court ruling unless the lawyer believes in good faith that such law or ruling is invalid (i.e., has been repealed or overturned).
Note: A lawyer may take appropriate steps to test in good faith the validity of any statute, rule or holding.
DUTY TO AVOID UNAUTHORIZED PRACTICE OF LAW
(State the Rule)
Rule 1 (ABA & Cal): A member cannot practice law in a jurisdiction where to do so would violate the professional ethics code of that jurisdiction.
Rule 2 (ABA & Cal): A lawyer must not aid any person or entity in the unauthorized practice of law.
LAWYER’S ABILITY TO PRACTICE OUTSIDE OF JURISDICTION OF ADMISSION
(State the Rule)
Rule (ABA): A lawyer may temporarily practice law in a jurisdiction to which she is not admitted if the lawyer is not disbarred or suspended from practice in any jurisdiction, AND
1) A lawyer admitted in the jurisdiction actively participates in the providing of the legal services,
2) The out-of-jurisdiction lawyer receives (or expects to receive) pro hac vice admission, OR
3) The out-of-jurisdiction lawyer is participating in an alternative dispute resolution or other temporary practice that arises out of, or is reasonably related to. the lawyer’s home- jurisdiction practice.
REPORTING PROFESSIONAL MISCONDUCT
(State the Rule)
Rule (ABA): A lawyer who knows that another lawyer has violated the Rules of Professional Conduct in a way that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer must inform the appropriate professional authority.
Rule (Cal): A lawyer must report herself, in writing, to the State Bar within 30 days of:
1) Being sued 3 or more times in 12 months for malpractice or other professional misconduct,
2) Being found civilly liable for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity,
3) Being sanctioned for more than 51,000,
a) Exception: Does not include discovery sanctions.
4) Being indicted for or charged with a felony,
5) Being convicted of a felony, a misdemeanor committed while practicing law, any crime in which the lawyer’s client was the victim, or any crime in which dishonesty or moral turpitude is a necessary element, a) Note: Includes guilty and no contest pleas.
6) Being disciplined by a professional agency or licensing board in any state,
7) Having a judgment reversed due to the lawyer’s misconduct, grossly incompetent representation, or willful misrepresentation.
DUTY TO ACCEPT REPRESENTATION
(State the Rule)
Rule (ABA): A lawyer is generally free to accept or reject any case, but must not seek to avoid court-appointed representation except for good cause. Good cause exists if:
1) Representing the client would result in a violation of the law or ethics codes,
2) Representing the client would result in an unreasonable financial burden on the lawyer, OR
3) The lawyer finds the client or the cause so repugnant that it is likely to affect the lawyer-client relationship or the lawyer’s ability to represent the client.
PRO BONO WORK
(State the Rule)
Rule (ABA): Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render 50 hours of pro bono services per year.
Rule (Cal): It is the duty of every lawyer never to reject, for any consideration personal to himself, the cause of the defenseless or the oppressed.
SPECIAL RESPONSIBILITIES OF THE PROSECUTOR
(State the Rule)
Rule (ABA): A prosecutor in a criminal case:
1) Must not pursue a charge that is not supported by probable cause,
2) Must make reasonable efforts to assure the accused has been advised of the right to counsel,
3) Must make reasonable efforts to assure the accused has been given reasonable opportunity to obtain counsel,
4) Must not seek a waiver of pretrial rights from an unrepresented defendant,
5) Must disclose to the defense all exculpatory or mitigating evidence,
6) Must not make extrajudicial comments that heighten public condemnation of the accused,
7) Must not subpoena a lawyer in a criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:
a) The information sought is not protected by a privilege,
b) The information sought is essential to an ongoing investigation or prosecution, AND
c) There is no other feasible way to obtain the information.
STEP 4 -
DUTIES ASSOCIATED WITH THE BUSINESS OF LAW:
WHAT SHOULD YOU CONSIDER WHEN CONTEMPLATING A LAWYER’S DUTIES REGARDING THE BUSINESS OF LAW?
1) Responsibilities of Supervisory and Subordinate Attorneys
2) Buying or Selling a Law Practice
3) Financial Agreements with Lawyers & Non-Lawyers
4) Referral Fees
5) Working with Former or Non- Lawyers
6) Advertising, Communications & Solicitations
RESPONSIBILITY OF PARTNERS, MANAGERS, & SUPERVISORY LAWYERS IN A FIRM
(State the Rule)
Rule (ABA): All law partners, managers, and supervisors must make reasonable efforts to ensure subordinate lawyers and the firm as a whole comply with ethical rules.
WHEN WILL A SUPERVISORY LAWYER BE HELD RESPONSIBLE FOR A SUBORDINATE LAWYER’S VIOLATION OF ETHICAL RULES?
Rule (ABA): A supervising lawyer will be responsible for a subordinate lawyer’s violation if the lawyer:
1) Orders the unethical conduct,
2) Knows of the specific conduct involved and ratifies the conduct, OR
3) Learns of the conduct in time to mitigate the consequences and fails to take reasonable action to do so.
IS A SUBORDINATE LAWYER ALWAYS LIABLE FOR HIS OWN CONDUCT THAT VIOLATES ETHICAL RULES?
Rule (ABA): A subordinate lawyer will not be found in violation of the ethics rules if he was acting in accordance with a supervisor’s reasonable resolution of a question of professional duty.
WHEN WILL A LAWYER BE HELD RESPONSIBLE FOR A NONLAWYER ASSISTANT’S CONDUCT?
Rule (ABA): A supervising lawyer will be responsible for an assistant’s conduct if the lawyer:
1) Fails to make reasonable efforts to ensure the assistant complies with ethical rules.
2) Orders the unethical conduct.
3) Knows of and ratifies the conduct, OR
4) Learns of the conduct in time to mitigate the consequences and fails to take reasonable action to do so.
BUYING/SELLING A LAW PRACTICE
(State the Rule)
Rule (ABA & Cal): A lawyer or firm may purchase or sell a law practice if:
1) The sale is to another lawyer or firm,
2) The fees charged to clients are not increased by reason of the sale, AND
3) The seller gives written notice to each of the seller’s clients explaining:
a) The proposed sale,
b) The client’s right to retain other counsel ortake possession of the client file, AND
c) That client’s consent to the transfer of client’s files to the purchasing lawyer/firm will be presumed if the client does not respond within 90 days.
EXPLAIN THE DIFFERENCE BETWEEN ABA & CALIFORNIA RULES REGARDING THE BUYING OR SELLING OF A LAW PRACTICE
In addition to the rules on which ABA and California agree:
ABA (not Cal) also requires:
1) That the entire practice, or the entire area of practice within a firm, be sold, AND
2) That the seller cease to engage in the private practice of law in:
a) The area of practice that has been sold, OR
b) The geographic area in which the practice has been conducted.
Cal (not ABA) also requires:
1) That all or substantially all of the practice be sold,
2) That the seller obtain clients’ consent to the transfer in writing, AND
3) That confidential information not be disclosed to a non-lawyer due to the sale.
Note:
1) ABA and California both prohibit the piecemeal sale of a law practice. California, however, allows the seller to retain one or two clients who have such a longstanding personal and professional relationship with the lawyer that transfer of their file would not be feasible.
2) California rules also specifically provide for the sale of a deceased lawyer’s practice: The conservator of the estate must meet the same requirements as living attorneys wishing to sell their practice.
FINANCIAL AGREEMENTS BETWEEN LAWYERS
(State the Rule)
Rule (ABA): Lawyers who are not in the same firm may share fees only if:
1) The division is in proportion to the services performed by each lawyer,
2) The client gives written consent to the arrangement, AND
3) The total fee charged to the client is reasonable.
Rule (Cal): Lawyers cannot share fees for legal services with lawyers who are not partners, associates, or shareholders unless:
1) The client gives informed, written consent to the terms of the fee-division agreement,
2) The total fee charged is not increased due to the sharing of fees, AND
3) The total fee is not unconscionable due to the sharing of fees.
FINANCIAL ARRANGEMENTS WITH NON-LAWYERS
(State the Rule)
Rule (ABA & Cal): A lawyer generally cannot share legal fees with a nonlawyer.
Exception (ABA & Cal):
1) A lawyer can make an agreement with her firm for the payment of money to the lawyer’s estate or heirs in the event of the lawyer’s death.
2) A lawyer who buys the practice of a deceased or disabled attorney may pay the estate or representative of that lawyer the agreed-upon purchase price.
3) A law firm may include nonlawyeremployees in a compensation orretirement plan, even if the plan isbased in whole or in part on a profit-sharing arrangement.
4) A lawyer may pay a registration,referral or participation fee to anapproved lawyer referral service.
5) ABA (not Cal): A lawyer can sharecourt-awarded legal fees with anonprofit organization that employed,retained or recommended employment of the lawyer in the matter.
6) Cal (not ABA): A lawyer completing the work of a deceased attorney may pay the deceased’s estate the portion of the total compensation which represents the services rendered by the deceased attorney.
COMPENSATION FOR REFERRALS
(State the Rule)
Rule (ABA): A lawyer generally must not give anything of value to a person for recommending the lawyer’s services.
Exceptions: A lawyer may:
1) Pay reasonable costs for permissible advertisements or communications,
2) Pay the usual charges of a legal service plan or an approved lawyer referral service,
3) Refer clients to another lawyer or a nonlawyer professional pursuant to a reciprocal referral agreement if:
a) The reciprocal referral agreement is not exclusive, AND
b) The client is informed of the existence and nature of the agreement.
Rule (Cal): A lawyer must not give or promise anything of value to any person or entity as an inducement, reward or compensation for recommending the lawyer or her firm to a potential client.
Exception: Referral fees are allowed for participation in State Bar-approved lawyer referral programs.
COMPENSATION FOR PUBLICITY
(State the Rule)
Rule (Cal): A lawyer must not give or promise anything of value to any representative of the press, radio, television, or other communication medium in anticipation of or in return for publicity of the lawyer, his law firm, or any other lawyer in his firm in a news item.
FORMING A PARTNERSHIP WITH A NONLAWYER
(State the Rule)
Rule (ABA & Cal): A lawyer must not form a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law.
WHAT DUTIES ARE DISBARRED ATTORNEYS NOT ALLOWED TO PERFORM?
(State the Rule)
Rule (Cal): A lawyer cannot employ a disbarred attorney to:
1) Give legal advice to a client,
2) Appear on behalf of a client in a hearing or proceeding,
3) Appear on behalf of a client at a deposition or other discovery matter,
4) Negotiate on behalf of the client with third parties,
5) Receive, disburse, or handle the client’s funds, AND/OR
6) Engage in activities which constitute the practice of law.
Note: This rule also applies to:
1) Suspended lawyers,
2) Involuntarily inactive lawyers who were forced to stop practicing due to ethical violations, AND
3) Resigned or retired lawyers who resigned from practice while disciplinary charges were pending.
WHAT DUTIES CAN DISBARRED ATTORNEYS PERFORM?
Rule (Cal): A lawyer may employ a disbarred attorney to:
1) Conduct research,
2) Draft pleadings and briefs,
3) Perform clerical work,
4) Communicate with clients regarding scheduling, billing, or to confirm receipt of correspondence.
Note: This rule also applies to suspended lawyers, involuntarily inactive lawyers, and lawyers who resigned while disciplinary charges were pending.
WHAT REQUIREMENTS MUST BE MET IF A LAWYER EMPLOYS A DISBARRED ATTORNEY?
Rule (Cal): If a lawyer employs a disbarred attorney, the lawyer must:
1) Inform the State Bar in writing of the employment, including a full description of the employee’s current Bar status and a statement that the former attorney will not perform prohibited activities,
2) Serve written notice with proof of sen/ice upon each client whose case the former attorney will work on,
3) Retain a copy of the notice and proof of service for 2 years after the active lawyer’s representation of the client ends, AND
4) Inform the State Bar upon termination of employment of the former attorney.
Note: This rule also applies to suspended lawyers, involuntarily inactive lawyers, and lawyers who resigned while disciplinary charges were pending.
WHAT 5 THINGS SHOULD YOU CONSIDER WHEN CONTEMPLATING MARKETING OF A LAWYER’S SERVICES?
1) General Guidelines
2) Fields of Specialization
3) Firm Names, Trade Names & Letterheads
4) Solicitation
5) Advertising
WHAT ARE THE GENERAL GUIDELINES A LAWYER MUST FOLLOW WHEN COMMUNICATING ABOUT HER SERVICES?
Rule (ABA): A lawyer must not make a false or misleading communication about the lawyer or the lawyer’s sen/ices. A communication is false or misleading if it:
1) Contains a material misrepresentation of fact or law, OR
2) Omits a fact necessary to make the statement, as a whole, not materially misleading.
Rule (Cal): A communication regarding a lawyer’s services must not:
1) Contain any untrue statement,
2) Present information in a way that isfalse or deceptive, or which tends toconfuse, deceive, or mislead the public,
3) Omit any fact necessary to make thestatements unambiguous to the public,
4) Fail to indicate that it is acommunication (e.g., “newsletter’) orsolicitation,
5) Be transmitted in a manner thatinvolves intrusion, coercion, duress,compulsion, intimidation, threats, or harassing conduct.
COMMUNICATIONS ABOUT FIELDS OF PRACTICE & SPECIALIZATION
(State the Rule)
Rule (ABA & Cal): A lawyer may communicate the fact that the lawyer does or does not practice in a particular field of law. However, a lawyer must not state or imply that a lawyer is certified as a specialist in a particular field of law, unless:
1) The lawyer has been certified as a specialist by an approved organization, AND
2) The name of the certifying organization is clearly identified in the communication.
FIRM NAMES, TRADE NAMES & LETTERHEADS
(State the Rule)
Rule (ABA & Cal):
1) A lawyer must not use a firm name, letterhead or other professional designation in a false or misleading manner.
2) A trade name used by a lawyer in private practice must not imply a connection with a government agency or a charitable legal services organization.
3) A lawyer must not imply through use of a firm name, trade name, or fictitious name that the lawyer works with another lawyer or law firm as a partner or associate unless such a relationship in fact exists.
ABA (not Cal) also provides: The name of a lawyer who is in public office must not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
Cal (not ABA) also provides: A lawyer must not use more than one firm name in the same community at the same time if the names differ materially from each other.
SOLICITATION
(Define & State the Rule)
Definition (Cal): A solicitation is any communication regarding a lawyer’s or a law firm’s availability for employment, in which pecuniary gain is a significant motive, that is delivered in person, by telephone, or through real-time electronics.
Rule (Cal): A solicitation must not be made by or on behalf of a lawyer or law firm to a prospective client unless:
1) The lawyer/law firm has a family or prior professional relationship with the prospective client,
2) The prospective client is a lawyer, OR
3) The communication is protected by the U.S. or California Constitution.
Exception (Cal): A lawyer may participate in a group legal service plan operated by an organization that uses in-person or telephone contact to solicit memberships or subscriptions for the plan.
ADVERTISING
(State the Rule)
Rule (ABA & Cal): A lawyer may advertise services using written, recorded, or electronic communication and may pay the reasonable costs of advertisements. Requirements:
1) An advertisement must include the name and address of at least one lawyer or law firm responsible for its content.
2) If advertising by mail, the word “Advertisement’ must be printed on the outside of the envelope.
3) If advertising in writing, the word “Advertisement’ must be written in 12- point type on the first page of the communication.
4) If a testimonial or endorsement is given, an express disclaimer that the testimonial/endorsement does not constitute a guarantee, warranty, or prediction of outcome must be given.
5) If a dramatization is used, a disclaimer as to that fact must be stated.
6) If an advertisement states or implies “no fee without recovery,’ the advertisement must expressly disclose whether the client will be liable for costs.
7) If an advertisement states a specific fee or range of fees, a lawyer may not charge a greater fee for 90 days after dissemination ofthe advertisement unless the advertisement expressly specifies a shorter period of time.
WHAT TYPES OF COMMUNICATIONS ARE PRESUMPTIVELY A VIOLATION OF THE RULES IN CALIFORNIA?
1) Offering a guarantee, warranty, or prediction ofthe outcome of the case,
2) Soliciting a potential client whom the lawyer knows/should know is in such a physical, emotional, or mental state that he would not be able to exercise reasonable judgment,
3) Soliciting a client at the scene of an accident, or at or en route to a hospital, emergency care center, or other health care facility,
4) Implying a lawyer or law firm is of counsel to another lawyer or law firm when no such relationship exists, AND
5) Stating or implying that a lawyer can provide legal services in a language other than English unless:
a) The lawyer can actually provide legal services in such language, OR
b) The title ofthe person who speaks another language is provided in the communication.
