PR Rules Flashcards
Duties To Client - When playing 5-Card STUD with a client’s money, I must be a responsible professional.
CCCCC (5-Card)
COMMUNICATE with client
act COMPETENTLY
do not reveal CONFIDENCES
avoid CONFLICTS of interest
render CANDID advice
SAFEGUARD client’s money & property
TERMINATE atty/client relationship fairly and properly
UNREASONABLE fees should not be charged
act with reasonable DILIGENCE
Withdrawing from Attorney/Client relationship - WE attorneys suffer from MANICURE withdrawal.
attorney is a WITNESS in the case, resulting in unfair prejudice to client
ETHICAL violation will occur if client is represented
MALICIOUS harassment will be brought upon opposing party with no good faith that claim/defense is warranted under law
ATTORNEY is being employed to commit past crime/fraud
proper NOTICE of withdrawal must be given to client*
INCOMPETENCY of attorney to handle matter
CRIMINAL or fraudulent conduct required
UNREASONABLE financial burden on attorney
REFUND all papers/property of client, along with unearned fees, upon withdrawal*
EXPENSES or fees promised by client are not paid
*these are procedural requirements of withdrawal
STATE REGULATION SOURCES
The authority to regulate practice within state courts is vested in the highest court of the jurisdiction.
There are two general classes of state bar associations:
o Integrated bar associations (all attorneys must join); and
o Voluntary bar associations.
o California has an integrated bar association
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FEDERAL REGULATION SOURCES
Federal Courts: Each court creates its own admissions requirements, but most courts require only that an attorney be a member of the state’s bar in which the court sits and makes a formal application for admission to the federal bar.
o Federal Administrative Agencies: Only requirement is that one must be a member of a state bar.
o Federal Government Attorneys: Subject to state ethics laws and rules governing attorney conduct in each state in which s/he practices.
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AMERICAN BAR ASSOCIATION
A voluntary organization. From 1969 to 1983, ABA’s standards were contained in the Model Code of Professional Responsibility. In 1983, the APA approved the Model Rules of Professional Conduct (RPC), which have been adopted by a majority of states.
CALIFORNIA ETHICS RULES
Must adhere to California Rules of Professional Conduct (Cal. RPC), which are based partly on the two ABA models, prior California rules, and the State Bar Act, a part of the California Business and Professions Code.
ADMISSIONS REQUIREMENTS
EDUCATIONAL REQUIREMENTS: Most states require an undergraduate degree plus three years of law school. (CA: Yes).
BAR EXAMINATION: Most jurisdictions require applicants to pass an examination (must be prepared and administered by an authorized organization, such as a state bar). (CA: Yes).
CITIZENSHIP REQUIREMENTS: No requirement that an applicant be a citizen of the United States. (CA does not require).
RESIDENCY REQUIREMENTS: Not allowed - violate the Privileges and Immunities Clause of the United States Constitution.
CHARACTER REQUIREMENTS: (CA: Yes)
o “Good Moral Character” or “Moral Turpitude” Test: Each applicant has the burden of showing that s/he possesses “good moral character.” Conduct contrary to justice, honesty, modesty, or good morals, constitutes “moral turpitude” and thus violates the “good moral character” test.
DISCIPLINARY PROCESS
REQUIREMENTS - A lawyer may not:
o Violate / attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or use the acts of another to commit a violation;
o Commit a criminal act that reflects adversely upon the lawyer’s honesty / fitness as a lawyer;
o State or imply an ability to improperly influence a government agency / official, or achieve results by illegal or unethical means;
o Engage in conduct involving dishonesty, fraud, or misrepresentation;
o Engage in conduct prejudicial to the administration of justice; or
o Knowingly assist a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other laws.
PROCEDURE:
o The disciplinary proceeding is initiated by a complaint to the state bar.
o A preliminary screening process conducted by a state bar appointed panel examines the complaint, which is then followed by a non-public hearing.
o Lawyer’s Rights: A lawyer subject to disciplinary procedures retains basic rights to counsel and cross-examination of witnesses and the right to invoke the 5th Amendment.
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TYPES OF DISCIPLINARY SANCTION
- *Most common penalties are:**
1. Disbarment;
2. Suspension; and
3. Public or private censure by the court or bar association.
UNAUTHORIZED PRACTICE OF LAW
The Rules prohibit a lawyer from:
o Practicing law in a jurisdiction where doing so violates the regulation of the legal professional in that jurisdiction; and
o Assisting a person who is not a member of the bar in performance of an activity that constitutes the unauthorized practice of law.
o In CA: It is a misdemeanor for anyone to practice law in CA without being an active member of the State Bar of California.
TYPES OF LEGAL PRACTICE
LAW FIRMS: Usually consist of partners, associates, and attorneys of counsel. A lawyer in practice must ensure that the client’s interests are paramount to the firm’s interests and that the client’s problems are handled with competence and care.
WORKING WITH NON-LAWYERS: A lawyer may not be a partner with a non-lawyer if any of the partnership activities consists of the practice of law.
CORPORATIONS: Because of certain favorable tax treatment, lawyers may incorporate.
ORGANIZATIONS: Legal services organizations include legal aid offices, public defender services, military legal assistance offices, and lawyer referral services
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RESPONSIBILITIES OF A PARTNER/SUPERVISING ATTORNEY
A law firm must ensure that member lawyers conform to the RPC. Supervisory lawyers have comparable responsibility.
A lawyer will be responsible for another lawyer’s violation of the RPC if:
o The lawyer orders or ratifies the conduct involved; or
o The lawyer is a partner or similar manager of the law firm in which the other lawyer practices, or
o The lawyer has direct supervisory authority over the other lawyer, knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
o CA: A California lawyer is prohibited from assisting in, soliciting, or inducing an ethics violation from another person. If one member of a firm commits a disciplinary violation, other members of the firm can be disciplined if they approved it or knew about it and did nothing to prevent it.
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SUBORDINATE LAWYER RESPONSIBILITIES
A lawyer is bound by the RPC even if s/he acts at the direction of another person.
RIGHT TO PRACTICE LIMITATIONS
A lawyer is prohibited from creating:
o A partnership or employment agreement that restricts the rights of a lawyer to practice after the relationship ends; or
o An agreement in which a restriction on the lawyer’s right to practice is part of the settlement of a controversy between private parties
SELLING A PRACTICE
The RPC permits a lawyer to sell a law practice or an area of practice if:
o The entire practice, or the entire area of practice, is sold to one or more lawyers or law firms;
o The seller ceases the private practice of law, or ceases to practice in the particular area of law, in the geographical territory in which s/he formerly practiced;
o Client fees do not increase because of the sale; and
o The seller notifies each client of the sale and of the client’s right to hire a different lawyer or to take possession of the client’s file.
- *o CA - Differs in four ways:**
1. California notice-to-clients requirements are more complicated;
2. The CA rule does not require the seller to cease practicing in the geographical territory in which s/he formerly practiced (but a sale agreement may contain a valid covenant not to compete for a reasonable period of time in a reasonable geographic area);
3. The CA rule does not permit the sale of an “area of practice” – it permits only the sale of “all or substantially all” of a law practice; and
4. The “substantially all” provision allows the seller to retain a few clients who pose a conflict of interest for the purchaser or who have a long relationship with the seller.
ADVERTISING AND SOLICITATION RULES
ADVERTISING: “Advertising” is a communication with the public at large. A lawyer is subject to discipline for any type of communication about the lawyer or his or her services that is false or misleading. A communication is false or misleading if it:
o Contains a material misrepresentation of law or fact; and
o Omits information that is necessary to make the communication as a whole not materially misleading.
SOLICITATION: “Solicitation” is a lawyer’s individual contact with a layperson designed to entice the layperson into hiring the lawyer. A lawyer must not seek fee-paying work by initiating personal or live telephone contact, or real time electronic contact, with a prospective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional connection.
DUTY OF CONFIDENTIALITY
A lawyer cannot reveal anything related to the representation of a client without the client’s consent.
Scope: This duty applies regardless of whether the client requests that the information be confidential.
Timing and Disclaimers
o The duty can attach before a lawyer/client relationship is formed;
o If no employment results, the party seeking to disqualify bears the burden of proof that the confidences were imparted; and
o Once it attaches it continues indefinitely.
o CA ends when an estate is settled.
DUTY OF CONFIDENTIALITY EXCEPTIONS
- Consent: If a client consents after consultation, a lawyer may reveal information that is otherwise privileged.
- Crimes:
o Death or substantial bodily harm:
o CA: If the attorney has reasonable belief that a disclosure is necessary to prevent a crime likely to result in death or serious bodily injury. The attorney must first make a good faith effort to persuade the client not to commit the act; Then s/he must inform the client the intent to reveal; But the revelation must be reasonable.
o ABA: Does not require a crime, just an act.
- Fraud or Financial Crimes:
o CA: No financial exceptions to confidentiality.
o ABA: Yes, if the client is using attorney services to commit the crime and the disclosure would prevent or mitigate substantial financial loss.
- Defending Oneself in Malpractice suits, in establishing the lawyer’s claim or defense, or Disciplinary actions brought against the lawyer.
- Compelled by law: If compelled by law, final court order, or other controlling ethical duties, a lawyer may reveal client information
DUTY OF CONFIDENTALITY: CA EXCEPTIONS
Although California has no ethics rule on confidentiality, all lawyers promise (in the Attorney’s Oath) to maintain the confidences and secrets of their clients. On the Oath’s face, this promise has no exceptions, but California case law has created exceptions for disclosure:
o If compelled by law or court order;
o To collect an attorney’s fee; or
o To defend against a claim of legal malpractice, ineffective assistance of counsel, legal malpractice, in effective assistance of counsel, or other wrongdoing by the attorney.
o Additionally, California legislation allows (but does not require) an attorney to reveal a client’s confidential information when necessary to prevent a criminal act that will cause death or substantial bodily injury to someone.
DUTY OF LOYALTY TO CURRENT CLIENT- GENERAL CONFLICT OF INTEREST RULES
Conflicts of Interest: A lawyer has a duty of loyalty to his or her client; this duty is breached if the lawyer’s interest, another client, or a third party materially limits or is adverse to loyal representation. Breach can be actual and potential.
A lawyer may not agree to represent a client unless:
o S/he reasonably believes s/he can represent everyone effectively, despite potential or actual conflict. (ABA - Objective standard: depends on the reasonableness.)
o S/he informs each client involved in the conflict (if the lawyer’s duty of confidentiality would prevent him or her from the disclosure then consent might not even be possible).
o The client must consent, confirming in writing.
