PR Rule Statements

Question 1

Formation of Lawyer-Client Relationship

Answer 1

The attorney-client relationship begins when the client reasonably believes the relationship exists, and no formal writing is required.

Question 2

Duty to Accept/Reject Representation

Answer 2

An attorney generally has no duty to accept representation. There is a duty to reject if representation would violate an ethical rule. In CA, a lawyer may not represent a client if he knows there is no probable cause to bring the action, or if the action is being brought to harass or injure another.

Question 3

Scope of Representation

Answer 3

Settlement
An attorney must communicate all bona fide settlement offers to the client. Only the client holds the authority to decide whether to accept the settlement. In CA, a lawyer must communicate all written settlement offers or substantial developments.

Strategy

The attorney has the authority to make strategic decisions to achieve the client’s goals.

Criminal Conduct

A lawyer may not counsel or assist the client in criminal or fraudulent conduct. The attorney must stop assisting the client in such conduct and withdraw from representation.

Question 4

Mandatory Withdraw

Answer 4

Termination
A client holds an absolute right to discharge a lawyer for any or no reason. The lawyer must withdraw if discharged, unless ordered to continue by the court.

Mandatory Withdrawal

An attorney must withdraw if failure to do so would result in violation of an ethical rule, or under the MR any other rule. In CA, an attorney must withdraw if he knows the client is asserting a claim without probable cause and for the purpose of harassing or injuring another.

Question 5

Permissive Withdrawl

Answer 5

Under the Model Rules, a lawyer may seek to withdraw at any time if it would not materially harm the client. A lawyer can withdraw, even if harm will result, if the client engages in crime or fraud, the client insists on a repugnant course of action, representation is unreasonably difficult, or representation is an unreasonable financial burden on the lawyer.

In CA, a lawyer cannot withdraw simply because the client will not be harmed. But a lawyer may withdraw for the same reasons as under the Model Rules, with the exception of an unreasonable financial burden.

Question 6

Procedure for Termination

Answer 6

A lawyer must give the client reasonable notice before withdrawal. If litigation is pending, the attorney must obtain court approval.
Duties After Termination
A lawyer has a duty to minimize harm to the client after termination. The lawyer must safeguard and return the client’s paper and property. Under the Model Rules, an attorney may retain papers to obtain payment. In CA, the lawyer must return the property

Question 7

General Rules Regarding Fees

Answer 7

The Model Rules require that a lawyer charge fees reasonable under the circumstances. In CA, fees must not be unconscionable. CA also requires that if the fees will exceed $1,000, the agreement be in writing and signed by both parties, with a copy of the agreement retained by the client.

Question 8

Contingent Fees

Answer 8

Contingent fee agreements are allowed, but not in criminal cases or domestic cases where the fee is contingent on securing a divorce or the amount of support recovered. A contingent fee agreement must be in a writing and signed by the client, contain the method of calculating fees, and list the client’s expenses. In CA, a duplicate copy signed by both the attorney and client must be given to the client at signing. A non-compliant agreement is voidable by the client, but the attorney may still recover reasonable fees

Question 9

Fee Splitting

Answer 9

Fee Splitting
Lawyers in the same firm may split fees. Under the Model Rules, lawyers at different firms may split fees if the fee is in proportion to the services provided by each, the client agrees in writing, and the total fee is reasonable. In CA, fee splitting is allowed if the lawyers have a written agreement, the client provides written consent after full disclosure, and the total fee is not unconscionable. The total fees may not be higher simply because multiple attorneys are working on the case.

Question 10

Referral Fees

Answer 10

The Model Rules prohibit paying someone for recommending an attorney unless paying the fee of a legal services plan or approved referral service. In CA, a lawyer may give a gift for referral, provided the gift was not offered in anticipation of the referral or future referrals.

Question 11

Non-Lawyer Splitting Fees

Answer 11

A lawyer may not split fees with a non-lawyer, and cannot form a partnership with a non-lawyer if any of the activities include the practice of law.

Question 12

Duties Regarding Client Fund Accounts

Answer 12

All funds received or held for the benefit of the client must be deposited in a separate, identifiable bank account. No commingling of funds is allowed, except for an amount reasonably sufficient to pay bank charges. If there is a dispute over funds, the disputed funds must be kept in the client’s trust account.

Question 13

Attorney-Client Privilege

Answer 13

The attorney-client privilege is an evidentiary privilege applicable in legal proceedings in which the attorney may be called as a witness. A communication is privileged if 1) the client intended it to be confidential, and 2) it was made for the purpose of seeking legal advice and representation. The client holds the privilege and the attorney must assert it on the client’s behalf. Under the Model Rules, the privilege survives the client’s death. In CA, the privilege terminates when the client’s estate is settled.
Crime/Fraud Exception
There is no privilege when a communication relates to a client’s future crime or fraud. In CA, this exception applies to any future crime or fraud, not just the client’s.
Death or Substantial Bodily Harm
In CA, no privilege applies if the attorney believes disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm of an individual.

Question 14

Work Product Doctrine

Answer 14

Work product refers to material created by an attorney in anticipation of litigation. In CA, a writing that reflects a lawyer’s mental impressions or opinions is never discoverable. Other work product is only discoverable if denial would unfairly the prejudice the opposing party or result in injustice.

Question 15

Duty of Confidentiality

Answer 15

A lawyer is prohibited from disclosing any information relating to the representation of a client, the client gives informed consent or implied authorization to carry out the representation. A lawyer must also take reasonable precautions to protect confidential information.
Death or Substantial Harm
Under the Model Rules, an attorney may disclose confidential information to prevent reasonably certain death or substantial bodily harm. In CA, this exception only applies to criminal acts resulting in death or harm. Furthermore, CA requires the attorney to make a good-faith effort to persuade the client to not commit the criminal, and to inform the client of the decision to reveal the information if reasonable.
Financial Harm
The Model Rules allow an attorney to reveal confidential information if reasonably necessary to prevent the client from committed a crime or fraud that will substantially injure the financial interests of another another. CA rules do not allow such disclosure.
Prospective Clients
A lawyer generally owes a duty of confidentiality to a prospective client, even if no attorney-client relationship is ultimately formed.

Question 16

General Lawyer-Client Conflict

Answer 16

A lawyer must not represent a client if representation may be materially limited by the lawyer’s own interests, unless 1) the lawyer subjectively and objectively reasonably believes he can provide competent representation, 2) the representation is not prohibited by law, and 3) the client gives informed consent, confirmed in writing.

Question 17

Related Opposing Lawyer Conflict

Answer 17

A lawyer may not represent a client in a matter in which they are related to another party’s lawyer. The Model Rules require informed consent of each. The CA rules require the lawyer first inform the client in writing of the relationship.

Question 18

Sexual Relations Conflict

Answer 18

Both the Model Rules and CA rules prohibit sexual relations with a client, unless a consensual sexual relationship existed before the attorney-client relationship began. The client cannot waive this conflict through informed consent.

Question 19

Lawyer as a Witness

Answer 19

A lawyer may not act as an advocate at a trial in which the lawyer is likely to be a necessary witness, unless the testimony relates to an uncontested issue or to the nature and value of legal services rendered in the case. The Model Rules allow representation to continue if disqualification would be a substantial hardship. In CA, the lawyer can obtain the client’s informed written consent.

Question 20

Proprietary Interest in Litigation

Answer 20

The Model Rules forbid a lawyer from obtaining a proprietary interest in the cause of action or subject matter of the litigation in which he represents a client, unless the lawyer acquires a lien to secure payment, or the interest is a reasonable contingency fee meeting the requirements for such a fee.

Question 21

Financial Assistance to Clients

Answer 21

Under the Model Rules, a lawyer may not give financial assistance to a client except for reasonable advances of litigation costs, for which the client must ultimately be liable. A lawyer representing an indigent client may advance costs regardless of whether they will be repaid. In CA, a lawyer may not pay the personal or business expenses of a client, but may lend money if the client promises in writing to repay.

Question 22

Business Transactions with Clients

Answer 22

A lawyer may not enter into a business transaction with a client unless the terms are fully disclosed in writing, are fair an reasonable, the client understands the terms, the client consents in writing, and the client is encouraged and given a chance to seek independent counsel.

Question 23

Malpractice Limitations

Answer 23

The Model Rules allow a lawyer to make an agreement prospectively limiting malpractice lawyer, if the client is represented by independent counsel in making the agreement. In CA, such agreements are strictly prohibited.

Question 24

Current Client Conflicts

Answer 24

A lawyer must not represent a client if 1) doing so would be directly adverse to the interests of another current client, or 2) there is a significant risk representation will be materially limited by the lawyer’s responsibilities to the current client. The lawyer may enter into such representation if 1) the lawyer subjectively and objectively reasonably believes she can provide competent and diligent representation to each client, 2) representation is not prohibited by law, and 3) the representation does not involve parties on both sides of the same litigation or proceeding. The Model Rules require informed consent of the clients, confirmed in writing. CA rules require informed written consent.

Question 25

Current and Former Clients

Answer 25

A lawyer who has previously represented a client must not later represent another person in the same or substantially matter if that person’s interests are materially adverse to the former client’s, unless the client consents. The Model Rules require informed consent confirmed in writing. CA rules require informed written consent.
Substantially Related Matter
A substantially related matter is one involving the same transaction or dispute as the prior clients, or one with a substantial risk that confidential factual information form the prior representation will advance the new client’s position.

Question 26

Prospective Clients Conflicts of Interest

Answer 26

Under the Model Rules, a lawyer may not represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter, if the lawyer received information from the prospective client that could be significantly harmful unless both clients give informed consent, confirmed in writing.

In CA, the information received must be material, but need not be significantly harmful. CA requires informed written consent.

Question 27

Third Party Payments

Answer 27

Under the Model Rules, a lawyer may not accept payment from a third party for representation unless the client gives informed consent, there is no interference with the lawyer’s judgment, and lawyer-client confidentiality is preserved. CA requires informed written consent.

Question 28

Organization as a Client

Answer 28

Organization as Client
A lawyer representing an organization owes duties of loyalty and confidentiality to the organization, not its individual members. The lawyer must make it clear that they represent the organization when it becomes clear a member’s interests may be adverse to those of the organization.

Question 29

Ability to Report Out

Answer 29

Reporting
Upon learning of misconduct that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization. The lawyer must report the matter to higher authority within the organization unless it is not in the best interest to do so. In CA, the lawyer must not reveal any client confidential information when reporting up.

Question 30

Duty of Competence

Answer 30

Under the Model Rules, a lawyer must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation. In CA, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. A lawyer can accept representation if they can achieve competence through reasonable preparation, or can associate with another competent lawyer.

Question 31

Duty of Diligence

Answer 31

Under the Model Rules, a lawyer must act with reasonable diligence and promptness when representing a client. In CA, a lawyer must not intentionally, recklessly, or repeatedly fail to act with reasonable diligence.

Question 32

Improper Influence

Answer 32

A lawyer may not attempt to influence a judge, juror, or other official through illegal means.

Question 33

Duty Against Frivolous Claims

Answer 33

A lawyer may only assert a claim or defense with basis in law and fact. A good faith argument for a change in existing law is not frivolous. Under the Model Rules, a lawyer may not bring claim meant to embarrass or burden another. In CA, a lawyer may not take a position without probable cause and for the purpose of harassing or injuring another.

Question 34

Duty of Candor

Answer 34

A lawyer may not knowingly make a false statement of law or fact to the the court, and is required to correct such a false statement previously made.

Question 35

Duty of Fairness

Answer 35

Evidence
A lawyer may not unlawfully alter, destroy, or hide evidence, or otherwise obstruct another party’s access to the evidence.
Witnesses
A lawyer may not request that a witness refrain from speaking with another party.

In CA, a lawyer may not offer to pay a witness contingent on their testimony or the case’s outcome. The lawyer may advance witness expenses.

Question 36

False Evidence

Answer 36

A lawyer may not knowingly offer false evidence, and may refuse to submit evidence reasonably believed to be false.
After it is Offered
A lawyer must take remedial measures after learning about false evidence that has been presented. The lawyer must urge the client to correct the false statement, and withdraw if the client refuses to do so. Under the Model Rules, if withdrawal is not allowed, the lawyer should disclose the false evidence to the court. In CA, the lawyer may not disclose to the court if doing so would reveal confidential client information.

Question 37

Criminal Defendants

Answer 37

A lawyer can only refuse a defendant’s choice to testify if he knows the testimony to be false. The lawyer must urge the client to correct the false statement or evidence. Under the Model Rules, withdrawal is mandatory if the client refuses. If withdrawal is not possible, the lawyer must disclose the false evidence to the court. In CA withdrawal is optional, and the lawyer can question the defendant until the point of falsehood and allow them to continue testifying through narrative, and without asking the defendant questions.

Question 38

Duty to Communicate

Answer 38

A lawyer must regularly communicate with their client, answer client questions, and inform them of any settlement offers.

Question 39

Juror Communications

Answer 39

A lawyer may not communicate with jurors outside of court before or during the proceeding.

Question 40

Persons Represented by Counsel

Answer 40

If a lawyer knows a person is represented by counsel, the lawyer may not communicate about the subject matter of representation with that person without consent. If the represented person contacts the lawyer first, the lawyer must terminate communication upon learning of the representation.

Question 41

Organizations Represented by Counsel

Answer 41

A lawyer cannot communicate with a member of an organization represented by other counsel without consent, but may communicate with a former member.

Question 42

Unrepresented Persons

Answer 42

When communicating with a person not represented by counsel, a lawyer may not give legal advice and must make it clear who he represents.

Question 43

Duty Concerning Trial Publicity

Answer 43

A lawyer cannot make an out of court statement that 1) will be distributed publicly, and 2) will have substantial likelihood of materially prejudicing a court proceeding. A lawyer may make a public statement to protect their client from other prejudicial publicity.

Question 44

Prosecutors Duties

Answer 44

A prosecutor may only prosecute charges supported by probable cause.

A prosecutor is required to disclose all exculpatory evidence, and after a conviction must disclose any new, credible evidence creating a likelihood the defendant did not commit the offense.

Question 45

Duty Concerning Advertisements

Answer 45

A lawyer may not make a false or materially misleading statement about himself or his services. Attorney advertisements must include the name and address of the attorney and may include a specialization in an area of law, but cannot imply the attorney is a certified specialized unless she is actually certified.

Question 46

Duty Concerning Solicitation

Answer 46

A lawyer may not solicit a prospective client in person, by live telephone, or through real-time electronic contact where the lawyer is motivated by pecuniary gain, unless the prospective client is another lawyer, a family member, close friend, or has a prior professional relationship with the lawyer.

Question 47

Integrity of the Profession

Answer 47

Under the Model Rules, a lawyer is required to report misconduct of another attorney relating to honesty or professional fitness when the lawyer was actual knowledge of such misconduct. The CA rules do not require reporting.

Question 48

Unauthorized Practice of Law

Answer 48

A lawyer may not practice in a jurisdiction in which he is not admitted, and may not assist non-lawyers in the unlicensed practice of law.