Prof. Resp. Flashcards
Duty of Candor
An atty is prohibited from engaging in, or encouraging, conduct involving dishonesty, fraud, deceit, or misrepresentation.
Duty to State Law Truthfully
Knowingly making false statement of the law to the Court is subject to discipline. This include the duty to cite adverse authority, if for a controlling jx. and directly on point.
Duty to Present Facts and Evid. Truthfully
An atty. cannot make material misrepresentation or fail to correct a material misrepresentation previously presented.
Duty to Present Facts and Evid. Truthfully - Client Perjury
An atty cannot knowingly facilitate client perjury. In a civil case they must refuse to let client testify, in a crim. case they have a right to testify.
Atty must counsel client to testify truthfully or not take the stand, withdraw, or tell judge as last resort. In CA seeking withdrawal is permissive, not mandatory. Also in CA, an atty can allow the client to testify in narrative fashion but cannot further the deception.
The obligation to correct ends with the proceedings (through time of appeal). An atty cannot counsel or assist a witness to testify falsely or to become “unavailable”.
Duty to Produce Evid.
An atty cannot knowingly withhold or tamper with physical evidence that atty. or client has legal obligation to reveal or produce.
If atty is reasonably certain something is a fruit or instrumentality of a crime, must turn it over to the authorities.
If atty sees contraband but does not touch it, no problem. If touches, may be compelled to produce/testify because they moved/altered it.
Duty to Produce Evid.: - Ex Parte Proceedings
An atty must reveal all relevant info, even if harmful to client’s case.
Duty to Produce Evid. - Prosecutor’s Duty
Must timely disclose favorable evidence to the defense, regardless of admissibility or impact on outcome.
Duty to Produce Evid. - Mistaken Receipt
If atty knows document was inadvertently sent, must stop reading and notify opposing counsel.
Duty to Uphold Law - Client Fraud
An atty is permitted to disclose facts necessary to prevent death or serious bodily harm. There is no duty to reveal client’s fraud, unless the failure to do so would assist a crime. However, an atty may be compelled to reveal info to prevent a future crime or fraud in exception to the AC privilege.
Duty to Uphold Law - Assistance in Crime
An atty cannot counsel a client in how to break the law. The atty MAY withdraw if the client persists on a course of action that the atty reasonably believes is criminal. The atty MUST withdraw if continued representation would require him to commit or assist in committing a crime.
Duty of Candor to the Public and Dignity of the Profession (Advertising and Solicitation)
Generally, a State can regulate atty advertising and solicitation subject to lawyer’s limited commercial speech rights under 1st Am.
A restriction of commercial speech is constitutional if:
1. Gov. asserts a substantial interest (dignity of the profession)
2. Regulation advances that interest, and
3. Regulation is narrowly tailored.
Advertising
A lawyer’s communication with the public at large, or a segment of the public. Must not be false or misleading (cannot omit material info). Cannot raise unjustified expectations or make unverifiable comparisons.
CA Specific: Presumes improper any ad that contains any guaranties, warranties, or predictions of result. No testimonials or endorsements may be used unless there is an express disclaimer they ad is not a guarantee, warranty, or prediction.
Labeling of Ads
Every Ad must be labeled as such, and dramatizations must be noted. Must identify at least one lawyer or firm responsible for its contents. Atty must keep records of content/placement of Ads for 2 years.
Claims of Legal Specialty
Ads can explain practice areas but cannot advertise that legal “specialization” unless the atty has been certified by a bar association/other body in that area.
Solicitation
Refers to individualized contact with a layperson, initiated by the lawyer or his agent that is designed to entice him to hire the lawyer.
An atty cannot seek professional employment for pecuniary gain by initiating a live, telephone, or real-time electronic contact with a prospective client with whom he has no prior professional, personal, or familial relationship.
CA Specific: Presumes communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that atty should know are not in physical/mental state to exercise reasonable judgment.
Referral Payments
Payments for referral are not permitted except for:
1. Fee splitting under CA rules
2. Small, ordinary fees paid to authorized lawyer referral services.
Duty of Confidentiality
An atty cannot reveal anything related to the representation of a client. Applies regardless whether the client requested confidentiality or disclosure will harm the client.
The duty can attach before a lawyer-client relationship is formed and even if none is ever formed. To ensure the duty does not form, there must be clear and specific language warning no confidentiality.
Continues beyond death.
Confidentiality Exceptions
- Consent - if client consents after consolation, lawyer may reveal otherwise confidential information (consent is also implied to the extent needed to render the legal services).
- Crimes- can reveal if a Client is using or has used services to commit a crime or atty has reason to believe disclosure necessary to prevent death/substantial bodily injury. (CA Specific - If reasonable under the circumstances, you must make a good faith effort to persuade client not to commit the act and inform them of your decision to reveal his confidences)
- Compelled - by a Court order
- Defending a claim for legal malpractice
Duty of Loyalty - Conflict of Interest
An atty cannot have any other interest that materially limits loyal representation or is adverse to the client. If such an interest arises, representation is allowed if:
- The atty reasonably believes he can represent everyone effectively
- The atty informs each affected client
- Client consents in writing (if a reasonable atty would not advise their client to consent, then consent is invalid)
Prospective Clients
A lawyer owes a duty as to confidential info received from prospective clients. Further, the lawyer shall not represent a client with material adverse interests to a prospective client in the same or substantially related matter if the lawyer received confidential info material to the matter from the prospective client.
Client v. Client Conflicts
Lawyer may represent multiple clients with potential conflicts with the reasonable consent of each, but this is almost never proper if the interests are in actual conflict.
Opposing sides of the same matter: Prohibited
Opposing Present Client in Simultaneously Pending Matter: A representation adverse to a current client in another matter permitted if rule is met, prohibited otherwise.
Two Clients with Inconsistent Positions: OK with consent of both clients, but if either would be disadvantaged then must withdraw.
Multiple Clients in the Same Matter: Possible to represent insured/insurance co, employer/employee and company as co-Ds in civil litigations, both spouses in prenup, divorce, or will.
Lawyer v. Client Conflicts
Lawyer should not become interested in the subject matter of the litigation, except to obtain a lien on prop. for fees or on a contingent fee basis.
Lawyer Business Transaction or Adverse Business Interests
Ok if:
- Terms are fair
- fully disclosed in understandable writing
- Client has opportunity to consult outside atty
- Client provides written consent
Publication Rights
An attorney cannot buy the rights to a client’s story after the representation has ended.
CA is different in that it strongly discourages it, but a Judge can allow if satisfied that client clearly understands and consents.
Loans and Advances to Clients
Prohibits loans to clients, except for costs of litigation if client indigent and advance of expenses if client promises to pay it back.
CA differs in that you cannot promise to pay a client’s debts to gain business, but allows for loans in all matters for any purpose after the atty is hired if there is a written IOU.
Gifts from Clients
Can’t solicit substantial gift from client or draft legal instrument in exchange if they are not a relative.
CA only prohibits inducing the gift, not drafting the instrument.
Prohibition on Sexual Relations With Client
Strict prohibition on sexual relations with a current client who is not a spouse or registered domestic partner, unless a consensual sexual relationship exists between them when the attorney-client relationship began.
Trial Counsel as Necessary Witness
Typically not allowed, UNLESS atty’s appearance will not prejudice the client and testimony is uncontested, or regarding the nature of services rendered. Also allowed if the atty’s distinctive value means withdrawals would cause undue hardship.
CA allows an atty to testify if it is to anyone but the jury or if the client consents in writing.
New Clients in Matters Related to Current/Former Clients
If confidential info from former client must be relevant to work on a new client’s matter then cannot take on the new client without reasonable permission from old client.
- Do the matters overlap in functions, scope, info?
- Use of former client’s non-public confidential info against her is unreasonable
- If the atty leaves the firm, the firm might be able to represent the new client but imputed disqualification applied to former firm if (1) the matters are substantially related or the same, and (2) any remaining atty has confidential material info
Former Gov. Atty Now in Private Practice
If atty previously would “personally and substantially” on a specific dispute. they cannot work on the same matter later in private practice. Regulations are not matters for this purpose. Exceptions to imputed disqualification for former gov. atty are (1) screened off, (2) does not share any of the fee from the matter, and (3) the relevant government authority is notified.
Conflicts Due to 3rd Party Interference
Compensation from a third party is only permitted with informed client consent.
Conflicts - Org. as client
An atty must act in the best interest of the entity, even if the officer/EE/other act to the contrary. If a company official intends to act contrary to the interest of the company, even the CEO, the atty must remind them that the company is the client and ask them to reconsider their actions. If that appeal is unsuccessful the atty can go to the board of directors, then an outside person, then just quit.
SEC Reporting
Securities Atty must report to CLO/CEO any evidence of a material violation of the SEC law or breach of fiduciary duty by a client. If that appeal is unsuccessful, the atty must go to the board of directors, then an audit committee, then outside directors.
Duty of Financial Integrity - Atty Fees
Fee agreements should be reached clearly and early. Non-contingent fee agreements should include how the fee is calculated, what services were covered, and the lawyer/client contractual duties. The amount of fees must be reasonable given a totality of the circumstances.
CA requires agreements be in writing, unless (1) under $1k, (2) corporate client, (3) for routine services for regular client, or (4) emergency/impractical. The amount of fees cannot be unconscionably high. Atty are required to agree to submit to arbitration of fees if client desires.
Financial Integrity - Contingency Fees
Written Fee agreements must be (1) signed, (2) include contingency percentage, (3) what expenses will be deducted from recovery, and (4) whether the percentage is taken before or after expenses paid.
CA also requires that the writing include (1) how work not covered by the contingency fee will be paid, (2) that fees be negotiable and not a standard percentage of recovery.
Both ABA and CA prohibit use in criminal and domestic matters.
Financial Integrity- Fee Splitting ABA
Fee splitting is always okay with another atty within the firm. Fee splitting with atty outside the firm okay if
- Written disclosure and consent from the client
- Amount of Fees not unreasonable
- Division of work is proportional to work done by each atty (CA doesn’t have this)
Fee splitting with non-lawyer not allowed
Partnerships with non lawyers not allowed if to provide legal services
Financial Integrity - Fee Splitting CA
To divide fees for shared work or responsibility, atty must :
- Obtain informed written consent from the client at the time of the agreement (or as soon as reasonably practicable after disclosing the division).
- Disclose the identity of the lawyers/firm and the terms of the division.
- Enter into a written agreement to divide the fee and the fee cannot be increased as a result of the division.
Fee splitting with non-lawyer not allowed
Partnerships with non lawyers not allowed if to provide legal services
Duty to Safeguard Client’s Prop.
Money held for client must be placed in a client trust account which bears interest. No commingling or borrowing is allowed.
CA requires the trust account be maintained in California.
Duty to Keep Good Records for Client
Must keep good records, render accountings, notify him of moneys received on his behalf, and pay promptly money due to him.
CA additionally requires atty to keep records of client prop for 5 yrs after final distributions.
Duty of Competence
Lawyer has a duty to render competent service via the legal knowledge, skill, thoroughness, and preparation reasonable for the representation. A lawyer who is unfamiliar with an area of law may not take on a matter unless they are reasonably certain they can become familiar without prejudice to the client’s case (or they can associate with a lawyer who is familiar with that area of law).
Scope of Representation
Client makes the decisions about their substantive rights (whether to testify in a criminal case, waive jury trial, enter plea, or accept settlement in civil case.)
Atty makes decisions about procedure and legal strategy (what discovery to seek or motions to file)
If a disagreement arises, the atty can limit the scope of his representation with client consent.
Duty to Communicate
Must keep client informed about significant developments in the case, including any settlement offers and returning phone calls.
CA - In addition to informing client of significant updates in the case, the atty must also:
- Promptly inform the client of any decision or circumstance requiring either disclosure or the client’s informed consent
- Reasonably consult with the client about their objectives and manner of achieving them
- Advise the client of relevant limitation on the lawyer’s conduct
Duty on Withdrawal
Client Fires Contingent Lawyer - if client wins, atty can then can recover on a quantum meruit basis
Mandatory Withdrawal - If continuing representation would violate a law or ethical rule (mental/physical incapacity of atty or assisting a crime). If client is using services to commit a crime or fraud, might require a “noisy withdrawal”. Disavow any docs or opinions that further a continuing crime.
Permissive Withdrawal - May withdraw if you can convince the Court that doing so is reaosnble or would be fair because the client:
- Financially burdensome
- Acts illegally or has used services to commit past crime or fraud (CA does not apply)
- Insists on pursuing objectives you find “repugnant” or “imprudent”
- Refuses to fulfill an obligation to you after you warned him you would withdraw if he did not comply
- (CA Only) For breach of Contract where client refuses to pay legal fees
Court may deny withdrawal based on undue delay or disruption
Withdrawal Procedure
Must provide timely notice to the client and:
- Promptly return any unspent fee and expense advances, and
- All papers and property of the client (CA additionally forbids withholding client materials for money)
Duty to Deal Fairly with Others
Communications with Adversaries or Third Parties - Must not make false statement of fact. Must not violate the legal rights of a person to obtain evidence or use means with no purpose but to delay, burden, embarrass them.
Communications with Anyone Represented by Counsel - Must not communicate with them without the consent of their counsel.
Corporations - Consent required for interviews of management or anyone whose statements can be imputed to the organization for liability or as an admission.
Dealing with Press
D’s right to fair trial balanced against press and public’s right to be informed. An atty must avoid out of court statements that they reasonably should know have a substantial likelihood of materially prejudicing the case.
Exceptions:
1. Matters in the public record or routine booking info
2. Warning the public, informing them of an ongoing investigation, or asking for help
3. Statements required to protect client from substantial undue prejudice from recent publicity not self-initiated
Prosecutors must not make statement that have a substantial likelihood of heightening public condemnation of the accused.
Prosecutor Special Duties
Must seek justice, not just win cases. Includes:
- Must have probable cause to bring a case against D
- Protect the accused’s right to counsel
- Timely disclose evidence favorable to defense, and
- Exercise reasonable care to prevent associates from making prejudicial pretrial publicity
Duty to Court - Duty to Expedite
Atty has an affirmative duty to expedite cases
CA also prohibits the delay of cases to (1) harass adversary or (2) for atty’s personal gain/convenience
Duty to Preserve Impartiality and Dignity of Tribunal
Don’t try to influence anybody improperly. Don’t talk to the jury before or during trial.
No chicanery/trickery – referring to inadmissible material, matters unsupported by evid, asserting personal knowledge of facts at issue (tends to be behavior trying to pull wool over jury’s eyes).
Duty to avoid disruptive conduct.
Duty to Report Misconduct
Must report any atty or judge’s violation of the Rules if it raises a substantial q as to their honesty, trustworthiness, or fitness as a lawyer.
CA Rule: A lawyer must report credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects.
Duties of Subordinate Lawyers
If lawyer is under the control and supervision of another atty who orders lawyer to take an action in violation of the Rules:
- If the ethical responsibility is clear, lawyer is subject to discipline.
- If ethical responsibility is debatable, superior is solely responsible.
CA: you can be disciplined for merely knowing about a fellow firm member’s disciplinary violation and doing nothing to prevent it.
