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.
