PR knowledge questions Flashcards
ABA rules and mandatory withdrawal
Under the ABA Rules, withdrawal is mandatory (after obtaining permission from the tribunal, if required by its rules) if: (i) the representation will result in violation of the RPC or other law; (ii) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or (iii) the lawyer is discharged. Thus, C. is correct. The situations in A. and B. are grounds for permissive (not mandatory) withdrawal. The situation in D. is a specific ground for mandatory withdrawal in California, but not under the ABA Rules.
Exceptions on duties of confidentiality
Generally, a lawyer must not reveal information relating to the representation of a client. However, the ABA Rules recognize several exceptions in which a lawyer may reveal confidential information when reasonably necessary to achieve certain objectives, including (but not limited to) those listed in A., B., and C. The situation in D. is not recognized as an exception to the confidentiality rule.
Negligent breach of duty of competence
The ABA Rules provide that a lawyer must represent his client competently. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. The California Rule is narrower; it provides that a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. Thus, a California lawyer generally is not subject to discipline under this rule for an isolated act of negligence. As such, B. is the correct answer.
Lawyer 1, who has no experience in personal injury law, refers a valuable case to Lawyer 2, a personal injury lawyer who works at a different law firm. Lawyer 1 will have no involvement or responsibility pertaining to the case. Lawyer 2 wants to repay Lawyer 1’s kindness by giving him a portion of the legal fee collected in the matter. Referral fees of this type are:
B Strictly prohibited by the ABA Rules and the California Rules.
C Generally permitted by the California Rules if certain requirements are met, but prohibited under the ABA Rules.
The key point in this fact pattern is that Lawyer 1 will not have any involvement or responsibility pertaining to the matter. As described below, sharing a fee in this situation may be permitted under the California Rules but not under the ABA Rules.
Under the ABA Rules, splitting a legal fee with a lawyer at a different firm is only allowed if: (i) the total fee is reasonable; (ii) either (a) the split is proportionate to the services performed by each lawyer, or (b) the split is in some different proportion if each lawyer assumes joint responsibility for the matter; and (iii) the client agrees to the split in a writing that discloses the share each lawyer will receive.
The California Rule is a bit different. It does not require that the split be proportionate to the services or that the lawyers assume joint responsibility. Rather, it requires that (i) the agreement between the lawyers to share the fee must be in writing; (ii) the client must provide written consent to the division and its terms, as under the ABA Rule; and (iii) similar to the ABA Rule, the total fee must not be increased solely by reason of the agreement to divide fees. Thus, the lack of involvement or responsibility of Lawyer 1 in the matter is irrelevant. As long as the lawyers comply with the other requirements, the splitting of fees is permissible.
A lawyer who formerly represented Former Client in a matter may not thereafter represent Current Client adverse to Former Client in:
A Any matter, unless Former Client consents.
B The same matter or a substantially related matter, unless Former Client consents.
C The same matter, unless Current Client consents.
D The same matter or a substantially related matter, regardless of whether Former Client consents.
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent. B. is correct because the prohibition applies to the same matter or a substantially related matter, and because the former client’s informed consent will cure the conflict. Note that as a general rule, a lawyer also is prohibited from revealing a former client’s information or using such information to the former client’s disadvantage.
The Rules of Professional Conduct impose various limitations on a lawyer’s professional and financial dealings with nonlawyers.
For which of the following actions will a lawyer most likely be subject to discipline?
A Giving a paralegal a percentage of the legal fees earned in a case in proportion to the paralegal’s work on that case.
B Forming a partnership with a nonlawyer acquaintance to open a restaurant.
C Including nonlawyer employees in a law firm’s profit-sharing plan.
D Entering into a non-exclusive reciprocal referral arrangement with a nonlawyer professional.
As a general rule, a lawyer must not share legal fees with a nonlawyer. There are a few exceptions to this rule (such as including nonlawyer employees in a profit-sharing plan, as described in C.), but the situation described in A. is a classic example of prohibited fee-splitting. Paralegals and other nonlawyer employees may of course receive a salary, but they may not share directly in legal fees.
B. is wrong because forming a partnership or other organization with a nonlawyer is only prohibited if any of the organization’s activities consist of the practice of law; here the acquaintances are opening a restaurant.
D. is wrong because a lawyer may enter into a non-exclusive reciprocal referral arrangement with a non-lawyer professional, as long as the relevant clients are informed of the arrangement and the arrangement does not affect the lawyer’s professional judgment.
Loaning money to your client? OK under ABA or CA?
Under the ABA Rule, a lawyer generally must not provide financial assistance to a client in connection with pending or contemplated litigation. However, (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter (i.e., the lawyer and client may agree that if the client loses his case, he need not repay the funds); and (ii) a lawyer representing an indigent client can pay the client’s court costs and litigation expenses. The California Rule is similar, but it is different in three other respects: (i) the California Rule applies in all contexts, not just litigation; (ii) the California Rule prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business debts; (iii) after the lawyer is hired, he may lend the client money for any purpose if the client gives him a written promise to repay the loan; and (iv) it specifies that with the client’s consent, the lawyer may pay, or agree to pay, the client’s expenses to a third party from funds collected for the client as a result of the representation. Thus, under the California Rules, D. is the correct answer
A lawyer is representing a client in a personal injury lawsuit arising out of a car accident. The lawyer becomes aware that one of the many eyewitnesses to the accident is a plumber who has fixed the lawyer’s toilet on several occasions. The plumber’s testimony will only concern a minor issue and the lawyer is confident that her relationship with the plumber will not materially limit her representation of the client.
Under the California Rules, what must the lawyer do to address this situation?
A Obtain the client’s informed written consent regarding her relationship with the plumber.
B Provide written disclosure to the client as to her relationship with the plumber.
C Obtain the client’s oral informed consent regarding her relationship with the plumber.
D Nothing, because there is no conflict.
The California Rules contain specific provisions regarding a lawyer’s personal relationships with respect to persons involved in a representation.
Even where a significant risk of material limitation is not present, various personal and professional relationships with a party, witness, or attorney in a matter always require written disclosure to a client, and here such disclosure would be required.
Thus, B. is correct. (Note that if the relationship does create a significant risk of material limitation, the usual informed written consent from the client is required.)
When is solicitation in person ok?
A lawyer must not, by in-person, live telephone, or real-time electronic contact, solicit professional employment when a significant motive is the lawyer’s pecuniary gain—thus, offers of free legal service, made without hope of pecuniary gain, are generally permitted. Here, B. is wrong because it involves telephone contact, and C. is wrong because it involves personal contact. D. is wrong because a lawyer must not use an agent (here, the paralegal) to do that which the lawyer is prohibited from doing.
In which of the following situations may a concurrent conflict of interest be “waivable” (i.e., client consent may cure the conflict)?
A The lawyer has doubts as to whether the conflict will affect his professional judgment.
B The lawyer represents co-parties in the same civil lawsuit.
C The lawyer represents a plaintiff in suing a defendant, and represents the defendant in the same case.
D The lawyer cannot explain the details of the conflict to the client because of his duty of confidentiality to another client.
Despite a concurrent conflict of interest, a lawyer may undertake a representation if all of the following conditions are satisfied: (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, despite the concurrent conflict; (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 who is represented by the lawyer in the same case pending before a court or other tribunal; and (iv) each affected client gives informed consent, confirmed in writing (note that in California, “informed written consent” is required).
Here, condition (i) directly corresponds to wrong answer A. Condition (iii) corresponds to C., which is also wrong. D. is wrong because under condition (iv), the client’s consent must be “informed”—if the lawyer cannot adequately explain the conflict to the client, then the client’s consent is not effective. B. is the correct answer because conflicts involving joint or multiple representation are waivable if the conditions listed above are met.
Lawyer testifying as a necessary witness
A lawyer ordinarily may not represent a client in litigation where the lawyer is likely to be a necessary witness. Note that under the ABA Rules, this conflict is not waivable, i.e., the lawyer will not be allowed to continue the representation based on the client’s informed consent. Thus, if an attorney representing a client at trial is likely to be a necessary witness, the attorney should refuse employment or, if he has already been retained, should withdraw from the case. There are three recognized exceptions to this prohibition: (i) where the testimony will relate solely to an uncontested issue; (ii) where the testimony will concern only the nature and value of legal services rendered to the client; and (iii) where withdrawal of the lawyer would cause substantial hardship to the client because of the distinctive value of the lawyer or firm to the case.
California, on the other hand, does not recognize the substantial hardship ground above but does allow a lawyer to act in the dual role if the client provides informed consent.
Can a lawyer ever reccomend to a client to disobey a statute?
A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. Furthermore, the lawyer must not recommend illegal conduct or instruct the client on how to break the law and get away with it. However, a lawyer may discuss with his client the legal consequences of proposed courses of conduct. A lawyer may also counsel or assist the client in a good faith effort to determine the validity, scope, meaning, or application of the law. Determining the validity of a statute may require that a client disobey the statute.
A lawyer who represents a client in a matter speaks with a person who is represented by counsel in relation to that same matter. The lawyer will be subject to discipline EVEN IF:
A The person is not an actual party to the matter.
B The person’s lawyer has permitted the lawyer to speak with the person.
C The lawyer has no reason to believe that the person is represented by counsel.
D The communication is unrelated to the matter.
In the representation of a client, a lawyer generally must not communicate about the subject of the representation with a person he knows to be represented by counsel in the matter unless the other counsel has granted permission or he is otherwise authorized by law or court order to make such direct communication.
This prohibition on communications with a represented person applies only to matters relating to the representation, and only if the lawyer knows that the person is represented in the matter to be discussed (or if knowledge can be inferred from the circumstances). Note that this prohibition applies to any person represented by counsel concerning the matter to which the communication relates, even if the person is not formally a party to the matter.
A lawyer represents a client in litigation against a corporation and wants to talk with some of the corporation’s current and former employees. Which of the following statements best describes which employees the attorney may contact?
A The lawyer may speak with any current or former employee as long as the employee consents to the communication.
B The lawyer is prohibited from speaking with any current or former employee without the consent of the corporation’s counsel.
C The lawyer is prohibited from speaking with any current employee without the consent of the organization’s counsel, but may contact former employees.
D The lawyer is prohibited from speaking with certain categories of current employees without the consent of the corporation’s counsel, but may contact former employees.
Under the ABA Rules, a lawyer must get the consent of the organization’s counsel before communicating with a constituent of the organization: (i) who supervises or regularly consults with the organization’s lawyer about the matter, (ii) who has authority to obligate the organization with respect to the matter, or (iii) whose conduct in the matter may be imputed to the organization. The California Rule does not refer to categories (i) or (ii), but similarly prohibits contact with any current officer, director, or managing agent of the organization.
And like the ABA Rules, it prohibits contact with the persons in category (iii). A. is wrong because a lawyer must obtain the consent of the organization’s counsel before speaking with a current employee who falls within one of these categories. B. is wrong because contact with former employees is generally permitted, and both B. and C. are wrong because the rule only prohibits contact with specific categories of current employees.
What does the duty of candor to the tribunal require?
Generally, a lawyer must not: (i) make a false statement of fact or law to a tribunal, (ii) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, (iii) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel, or (iv) offer false evidence. B. is wrong because all controlling adverse legal authority must be disclosed. C. is wrong because, while a lawyer may refuse to offer evidence that she reasonably believes is false (but does not know is false), she is not required to do so. (A lawyer must refuse to offer evidence that she knows is false.)
In the case of potential perjury, the lawyer must first try to persuade the client to testify truthfully. If the client is not a criminal defendant, the lawyer must refuse to offer the evidence if the client insists on testifying falsely. A. is wrong because the lawyer is not forced to withdraw unless the lawyer-client relationship is so strained that the lawyer cannot represent the client effectively. If the client is a criminal defendant and insists on testifying falsely, the lawyer may seek to withdraw or take other remedial measures.
