PR From Essay PQs

Question 1

Duty of Competence

Answer 1

Under MR, 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.
Under CRPC, a lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence, which requires the
(i) learning and skill, and
(ii) mental, emotional, and physical ability reasonably necessary for the representation.

Question 2

Duty to Avoid Frivolous Claims

Answer 2

MR: Lawyers are prohibited 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. An action will be considered frivolous under the MR if the lawyer is unable either to
(i) make a good-faith argument on the merits of the action taken or
(ii) to support the action taken by a good-faith argument for an extension, modification, or reversal of existing law.
CA: 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.

Question 3

Conflict of Interest

Answer 3

A COI arises when there is significant risk that the representation of a client may be materially limited by the lawyer’s own personal interests.
For both MR and CRPC, a lawyer may still undertake representation threatened by a conflict of interest if
(i) the lawyer reasonably believes that he will be able to provide competent and diligent representation to the 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) the affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA RPC).

Question 4

Duty Not to Commingle Client Property

Answer 4

MR: A lawyer must hold the client’s property in their possession in connection with the representation separate from the lawyer’s own property.

Question 5

Duty to Communicate

Answer 5

MR: A lawyer has a duty to keep the client reasonably informed of the status of their case
CRPC: A lawyer has a duty to keep the client reasonably informed about significant developments related to the representation

Question 5

Duty of Fairness - Access to Evidence

Answer 5

MR/CRPC: A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter/destroy/conceal a document or other material having potential evidentiary value

Question 6

Permissive Withdrawal

Answer 6

MR: a lawyer may seek to withdraw if he can do so without materially harming the client. Even when harm to the client may result, a lawyer may seek to withdraw under a variety of grounds, such as when the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent or the lawyer has a fundamental disagreement with, or when the client has made representation unreasonably difficult for the lawyer.
CRPC: a lawyer may not request to withdraw merely because the withdrawal would not materially harm the client, but may request to withdraw if the client insists on presenting a claim or defense not warranted under existing law and which cannot be supported by a good-faith argument, when the client has made representation unreasonably difficult for the lawyer, or when continuing the representation is likely to result in a violation of the CA RPC or the State Bar Act, among other reasons.

Question 7

Procedure for Withdrawal

Answer 7

The proper procedure for terminating representation is to first provide the client with reasonable notice before withdrawing in order to give the client a reasonable opportunity to obtain new representation. Further, if permission for termination of a representation is required by the rules of a tribunal, a lawyer must not terminate a representation before that tribunal without its permission. Upon termination of the representation, the lawyer must return all papers and property to which the client is entitled.

Question 8

Employing a Disbarred Attorney

Answer 8

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.
Does not extend to research/drafting/clerical activities

Question 9

Assisting In the Unauthorized Practice of Law

Answer 9

Under both MR/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.

Question 10

Supervision of Non-Lawyers

Answer 10

Under MR/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.

Question 11

Threatening a Claim to Gain Advantage

Answer 11

CRPC: CA 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 n a civil dispute.

Question 12

Communication with a Represented Organization

Answer 12

MR: 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.
CRPC: A lawyer is prohibited from communicating with
(i) a current officer, director, partner, or managing agent of the organization or
(ii) 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.

Question 13

Duty of Loyalty - General

Answer 13

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.

Question 14

Duty of Loyalty - Current Clients

Answer 14

MR: 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.

Question 15

Duty of Loyalty - Current and Former Clients

Answer 15

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.

Question 16

Duty of Confidentiality

Answer 16

MR: 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.
CRPC: A lawyer is required to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.”
CA Defenses: (i) client gives informed consent or (ii) 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.

Question 17

Attorney-Client Privilege

Answer 17

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.

Question 18

Payment from Third Party

Answer 18

A lawyer may not accept payment for representation from someone other than the client, unless:
(i) the client gives informed consent;
(ii) there is no interference with the lawyer’s professional judgment; and
(iii) lawyer-client confidentiality is preserved.

Question 19

Communication of Fees

Answer 19

All rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.
Generally, only contingent-fee agreements must be in writing. However, California requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client, including attorney’s fees, will exceed $1,000. A copy of the written contract, signed by both parties, must be given to the client or the client’s representative.

Question 20

Mandatory Withdrawal

Answer 20

MR: a lawyer must withdraw from representation, and is subject to discipline, if failure to do so would result in violating the ethics rules or other law.
CRPC: a lawyer must withdraw if he knows or reasonably should know that the representation would result in a violation of the CA RPC or the SBA.

Question 21

Inadvertent Disclosure

Answer 21

MR: a lawyer who receives a document relating to the representation of the lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.
CRPC: where it is reasonably apparent to a lawyer that a writing was inadvertently sent, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer shall (i) refrain from examining the writing any more than is necessary to determine that it is privileged or subject to the work product doctrine, and (ii) promptly notify the sender. Additionally, the lawyer should return the writing to the sender, try to reach an arrangement with the sender, or seek guidance from a tribunal.

Question 22

Duty of Candor

Answer 22

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

Question 23

Scope of Representation

Answer 23

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

Question 24

Duty of (not to) Subordinate Lawyers

Answer 24

MR/CRPC: a subordinate lawyer must conform to the ethics rules even if acting under the direction of a supervising lawyer. But the subordinate lawyer does not violate the ethics rules if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty.

Question 25

Duty of Fairness - Discovery

Answer 25

The duty of fairness requires that a lawyer not make a frivolous discovery request of an opposing party.

Question 26

Screening

Answer 26

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

Question 27

Advancement of Court Costs

Answer 27

MR: a lawyer may advance litigation costs to the client. Although the client usually must remain ultimately liable for those costs, repayment may be made contingent on the outcome of the case.
CRPC: a lawyer may advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter.

Question 28

Referral Fees

Answer 28

MR: prohibit payment to anyone for recommending a lawyer’s services, except for permissible lawyer referral services, reciprocal referral agreements, and nominal gifts of appreciation. A referral fee given in return for merely recommending another attorney violates this rule.
CRPC: A referral fee is generally impermissible, but an attorney may give a “thank you” gift for a referral that results in employment of the attorney so long as it was not offered or given in consideration of any promise, agreement, or understanding that the gift or gratuity would be forthcoming or additional referrals would be made or encouraged in the future. Permitted lawyer referral services and plans and reciprocal fee agreements are also exempt from the rule.

Question 29

Fee Splitting

Answer 29

legal fees may not be shared between lawyers and non-lawyers unless an exception applies. The exceptions to this rule are:
(i) a non-lawyer paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement;
(ii) a lawyer who purchases the practice of a deceased, disabled, or missing lawyer and pays the estate or the representative of that lawyer;
(iii) fees shared with law-firm personnel though a compensation or retirement plan; and
(iv) a lawyer who shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer in the underlying matter.

Question 30

Solicitation

Answer 30

MR/CRPC: a lawyer must not solicit professional employment in person, by telephone, or by real-time electronic contact when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is (i) a lawyer or (ii) a person with whom the lawyer has a familial, close personal, or prior professional relationship.

Question 31

Association with Non-Lawyers

Answer 31

MR/CRPC: a lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.