Prof. Resp. Flashcards

Question

PR - **Duty of Fair Representation**

Answer 1

*Litigation Conduct* **_Generally:_** 1. No improper contact with juror or judge 2. No trial publicity that he knows or should know sill substantially prejudice proceeding 3. Must be fair to opposing counsel and parties **Incriminating Evidence:** Lawyer who receives incriminating evidence from a client must turn it over to proper authorities **Preventing Others from Providing Information:** Lawyer may not request a person other than client refrain from voluntarily giving relevant information to another party unless person is _relative_, employee or agent of client and lawyer reasonably believes person’s interest will not be adversely affected by refraining.

Answer 2

*Litigation Conduct* **Generally:** A lawyer may not 1. Unlawfully obstruct access to, or alter, spoliate or destroy, evidence 2. Falsify evidence or urge another to 3. Knowingly disobey court obligation 4. Make frivolous discovery request or objections 5. Fail to return document sent inadvertently 6. Allude to matter in trial not supported by admissible evidence 7. Deceive the court by making fraudulent statements or failing to disclose material fact when disclosure is necessary to prevent fraud or crime 8. Improperly contact opposing party knowing the party has counsel **California:** Cannot threaten to bring disciplinary, administrative or criminal proceedings to gain advantage in civil dispute.

Answer 3

*Present Facts and Evidence Truthfully* **Generally:** Duty to present facts and evidence truthfully. Lawyer must not make a false statement of material fact or knowingly offer false evidence to tribunal or fail to correct a previous false statement. An attorney also has a duty to state the law truthfully and cite adverse authority where controlling and on point. **Witnesses and Fees:** Lawyer may pay basic expenses of witness and reasonable fees to expert witnesses, so long as not contingent on content of testimony **Ex Parte Proceedings:** Must reveal both good and bad aspects of case **Criminal Defendants Who Testify Falsely:** Lawyer must permit client to testify in criminal trial even if he reasonably believes testimony will be false. The lawyer must: 1. Try to convince defendant not to testify falsely 2. If that fails, request permission to withdraw **ABA:** As a last resort, disclose information to the tribunal to set the matter straight **California:** Lawyer may call defendant as a witness and question him in ordinary manner up to point of false testimony, then allow defendant to testify in narrative fashion (but cannot use false testimony during closing). The attorney may not disclose privileged or confidential information to the tribunal to set the matter straight. **Other Witnesses:** Where lawyer knows witness intends to lie, he should: 1. Refrain from calling witness, or 2. Try to convince him not to testify falsely, or 3. Seek withdrawal, or 4. Under ABA, disclose enough information to set matter straight

Answer 4

*Cannot Suppress Evidence* ## Footnote **Generally:** Lawyer cannot suppress evidence he or client has legal obligation to reveal or produce, regardless of duty of loyalty. Also must not obstruct access to or tamper with fruit or instrumentalities of crime. Must turn them over to authorities, but cannot reveal source or statements made in conjunction.

Answer 5

*Cannot Suppress Evidence* ## Footnote **Generally:** Lawyer must not communicate about matter directly with another he knows to be represented by counsel unless counsel granted permission or is otherwise authorized by law or court order.

Answer 6

1. No prosecution unless probable cause 2. Ensure accused advised of right to counsel 3. Do not seek waiver of pretrial rights from unrepresented accused 4. Timely disclose exculpatory evidence and mitigating circumstances 5. Prevent investigators and law enforcement from improper extrajudicial statements 6. Do not issue subpoena to attorney in criminal proceeding to give evidence about client unless necessary 7. No prejudicial extrajudicial statements, except statements to inform public of prosecutor’s action 8. Promptly disclose new, credible and material evidence defendant did not commit offense 9. Seek to remedy conviction when prosecutor knows of clear and convincing evidence defendant wrongfully convicted

Answer 7

A lawyer has an independent duty to the public not to commit fraud, a crime, or some other serious immoral act

Answer 8

**ABA:** Lawyer who knows another lawyer violated professional rules in a way that raises substantial question as to his honesty or fitness as a lawyer must inform authorities. **California:** Lawyer required to report themselves when: 1. Sued for malpractice 3 times in 12 months 2. Found civilly liable for fraud, etc. 3. Sanctioned more than $1,000 4. Charged with felony 5. Convicted of serious crime 6. Disciplined in another jurisdiction

Answer 9

**_ABA:_** 1. Would violate rules of professional conduct or other law 2. Lawyer impaired by physical or mental condition 3. Lawyer is discharged **_California:_** 1. Would violate rules of professional conduct (not other law) 2. Lawyer impaired by physical or mental condition 3. Client acting without probable cause to harass or maliciously injure someone

Answer 10

**_ABA:_** 1. Withdrawal can be done without material adverse effect on client 2. Client used lawyer to perpetrate crime or fraud 3. Representation will result in unreasonable financial burden on lawyer 4. Client persists in criminal or fraudulent conduct involving lawyer’s services 5. Client insists on taking action lawyer considers repugnant 6. Client fails substantially to fulfill an obligation regarding lawyer’s services and has warning of lawyer’s withdrawal 7. Other good cause exists **_California:_** 1. Client persists in criminal or fraudulent conduct involving lawyer’s services 2. Client insists on taking action lawyer considers repugnant 3. Client fails substantially to fulfill an obligation regarding lawyer’s services and has warning of lawyer’s withdrawal * Note: Express permission to withdraw for breach of fee or expense agreement 4. Other good cause exists

Answer 11

1. Provide timely notice to client 2. Promptly return any unspent fee and expense advances, and all property and material papers (including work product) **_California:_** Attorney may not hold client’s materials hostage to get paid

Answer 12

*Must Be Truthful, Not False or Misleading* **_California—Never:_** 1. Guarantee outcome 2. Quick cash suggestions 3. Undisclosed impersonations 4. Undisclosed dramatizations 5. Contingent fee arrangements without warning of costs (if loser) **_California—Probably Not:_** 1. Communications delivered to hospital or distressed client 2. Mailings not clearly labeled 3. Testimonials without disclaimers

Answer 13

Solicitation involves directed contact with a particular person or persons. Lawyer must not seek fee-paying work by initiating personal or phone contact with prospective client who is not former client, current client, or someone with whom lawyer has personal, professional or family relationship. **_Free Services:_** May solicit without hope of pecuniary gain **_Letters:_** May sent truthful, non-deceptive letters to persons known to face specific legal problem

Answer 14

**ABA:** Fee must be reasonable and communicated to client, preferably in writing, before or within reasonable time after commencing representation. **California:** Fee must not be unconscionable, and must be in writing except where: 1. Client is corporation 2. Client states in writing he does not want it 3. Legal services of same kind client has previously received and paid for 4. Emergency 5. Writing is impractical **_Contingent Fees:_** Contingent fee offer must warn client they must still pay costs even if they lose. May be calculated on gross recovery or after costs are deducted, but either way disclosed in writing. * **ABA:** No contingent fee arrangements in domestic relations matters and in the representation of criminal defendants * **California:** Fee arrangements in domestic relations okay if they do not encourage divorce **_Fee Splitting:_** * **ABA:** 1. Client Consent 2. No Increase in Fee 3. Proportional to Work * **California:** 1. Written Informed Consent 2. No Increase in Fee