PR Essay Rules Flashcards
Disbarred attorney
Under the California Rules of Professional Conduct (“CRPC”), 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: (i) render legal advice to a client, (ii) make appearances on behalf of a client, (iii) appear as a representative of the client at a deposition or other discovery matter, or (iv) engage in activities that constitute the practice of law.
However, a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities. Work by a disbarred attorney who is employed by another attorney must be only preparatory in nature, as disbarred attorneys must not engage in activities that constitute the practice of law. Permitted work may include legal research, the assemblage of data or other necessary information, drafting of pleadings, briefs, and other similar documents, and other work that assists the attorney in carrying out the legal representation of a client.
(As long as Lawyer exercised her own professional discretion in reviewing the questions and deciding which ones to ask, then Lawyer did not breach any ethical duty.)
In addition, a lawyer must serve written notice of an ineligible person’s employment upon the California State Bar and each client on whose specific matter the ineligible person will work.
Unauthorized Practice of Law
Under the ABA Model Rules (“MR”) and the CRPC, a lawyer must not knowingly assist a person who is not admitted to the bar in the unauthorized practice of law.
The non-lawyer who engages in the unauthorized practice of law will be subject to civil and criminal penalties, but will not be subject to discipline under the ethics rules.
A lawyer who engages in the unauthorized practice of law or assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.
Supervision of Non-Lawyers
Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.
Threatening a Claim to Gain Advantage
California lawyers are specifically prohibited from, and subject to discipline for, threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.
Duty Not to File a Frivolous Claim
The MR prohibit lawyers from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous.
Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.
Communication with a Represented Person / duty to avoid communications with a constituent of a represented organization
Under the Model Rules, in the case of a represented organization, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.
Under the CRPC, in the case of a represented organization, a lawyer is prohibited from communicating with (i) a current officer, director, partner, or managing agent of the organization or (ii) a current employee, member, agent or other constituent of the organization if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.
Duty of Competence
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The CRPC require that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence.
Duty of Loyalty
Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a nonclient interest (i.e., a conflict of interest exists), the lawyer may be in breach of the duty of loyalty.
A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties.
Current Clients
Under the Model Rules, a lawyer must not represent a client if doing so would be directly adverse to the interests of another current client or if there is a significant risk that the representation of the client will be materially limited by the lawyer’s responsibilities to the current client, unless: (i) the lawyer reasonably believes that she will be able to provide competent and diligent representation to each affected client; (ii) the representation is not prohibited by law; (iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and (iv) each affected client gives informed consent, confirmed in writing.
Conflict - Current and Former Clients
The duty of loyalty to a client extends beyond the duration of the representation and can limit a lawyer’s ability to represent other clients or use information obtained in representing the client. Under the Model Rules, a lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing.
Duty of competence
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer should not accept representation in a matter unless it can be performed competently. A lawyer who represents a client incompetently is subject to punishment by the disciplinary tribunal, regardless of causation or any financial loss to the client.
As long as A either takes measures to prepare herself or associates with another competent attorney, she will not violate this duty.
Duty of Confidentiality
Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless the client gives informed consent; the disclosure is impliedly authorized in order to carry out the representation; or other specific exceptions apply. A California lawyer is required to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.” Additionally, a California lawyer must not reveal any confidential information unless the client gives informed consent or the lawyer reasonably believes the disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death of, or substantial bodily harm to an individual.
Lawyer-Client Privilege
Confidential communication between a client and his lawyer is privileged. The evidentiary lawyer-client privilege covers the client’s communication with a lawyer whom the client reasonably believes represents the client and only when the circumstances indicate a desire by the client for confidentiality. The communication must be intended to be confidential in order to be privileged. Communication made in the knowing presence of a third party generally destroys privilege, but the presence of, or communication by or through, a representative of the client or the lawyer does not destroy the lawyer-client privilege. The communication must be for the purpose of seeking legal advice or representation, but the lawyer is not required to give advice or agree to the representation for the privilege to exist. The client holds the privilege and is the only one who may waive it. The lawyer must assert the privilege on the client’s behalf to protect the client’s interests. The privilege exists until it is waived, and it can survive the client’s death. A dispute between co-clients who are now adverse to each other allows for the disclosure of confidential communications relevant to the dispute.
Attorney-Client Relationship
The lawyer-client relationship begins when the client reasonably believes the relationship exists.
No formal writing or agreement is required.
A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents, such as officers, directors, or employees.
conflict of interest
A conflict of interest (COI) arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client.
Under both the MR and CA RPC, if there is a concurrent COI, a lawyer may undertake representation if (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, (ii) it is not prohibited by law, (iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before the tribunal, and (iv) each affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA).
