Profess Respon. Flashcards

Question

Current Client Conflicts

Answer 1

* rep of one client directly adverse to another client who L reps in same or separate matter * **significant risk** that the rep of the client will be **materially limited** by L's own interest or by L's rsponsibilties to another client, former client or 3rd Person L may represent a client if certain conditions are satisfied including the clients' informed consent, confirmed in writing. CA rquires informed written consent meaning that both the disclosures and the client's consent must be in writing.

Answer 2

**Can Lawyer Be In?** ALL 4 CONDITIONS Satisfied: 1. L reasonably believes they can **c**ompetently and diligently rep the C despite conflict 2. Rep is not prohibited by **l**aw 3. Rep does not involve asserting a claim by one client against another client represented in the same proceeding before a tribunal (**B**oth sides) 4. Each affected client gives **i**nformed consent confimred in writing. -- CA requires both disclosure and consent from client be in writing. 5.

Answer 3

CA only Following relationships require written disclosure to client: * L /L in firm has legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client's matter. * L/L in firm is an immediate family member/lives with/intimate personal relationship with/is a client of the firm of another party's attorney in the client's matter.

Answer 4

**Fair Disclosure Is Advised** L must not enter into business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to C unless ALL conditions Satisfied: 1. Terms are **F**air to C 2. Terms/L's role in Transaction fully **d**isclosed to C **in writing** 3. C is Advised **in writing** that they should get independent **a**dvice from L before entering into arrangement 4. C gives **i**nformed consent **in writing** that C signs - not apply to products/services that C generally markets to others.

Answer 5

L must not use Confidential Information to a client's disadvantage unless client gives informaed consent or some exception to the duty of confidentiality applies.

Answer 6

L must not: * Solicit substantial gift or * Prepare an instrument on behalf of the client giving a substantial gift to the L (or L's relative). **CA** more flexible - oka if advised by independent lawyer who has provided a certificate of independent review Not an issue if C is related to the L/L's relative

Answer 7

not in connection with pending or contemplated litigation with the following exceptions for court costs and litigation expenses: * Advance Court costs and litigation expenses and repayment may be contingent on outcome of case * If C indigent then L may pay court costs and litigation expenses outright * L representing indigent client pro bono may provide modest gifts for basic living expenses but cannot promise/imply availability / seek or accept reimbursment or publicize or advertise a willingness to provide such gifts to prosepctive clients **CA ** prohibits L from buying potential client with promise to pay potential client'd debts after hired L may lend client money for any purpsoe if the client gives them a written promise to repay the loan. Specifies that with the client's consent the L may pay or agree to pay client's expenses to a third party from funds collected for client as a result of the representation.

Answer 8

L must not participate in the making of an aggregate settlment agreement unless: 1. L discloses to each client the existence and nature of all the claims or pleas involved and the participation of each person in the settlment 2. each client givesn informed consent to the agreement in a writing signed by the client.

Answer 9

L must not accept it unless * C gives informed consent * no interference with L's independence of professional judgment or lawyer-client relationship and * Confidential information relating to representation remains protected **CA** requires informed written consent from client AND disclosure and consent are not required at all if : 1. non disclosure or the compensation is otherwise authorized by court order or 2. L is rendering legal services on behalf of public agency/ non profit L may get client's consent after the fact if emergency

Answer 10

IC Reasonable time Independently repped BUT NEVER in CA **ABA**: * L must advise unrepresented/former client within they have a malpractice dispute that C should retain independent counsel * L must give C reasonable chance to obtain consult with IC re dispute. * L msutnot make agreement unless C is independently represented in making the agreement. **CA** Cannot prospectively limit malpractice liability under any circumstances.

Answer 11

Must not for current representation of the case however they may after client's legal matter is entirely completed appeals and all. CA did not adopt this - treated as a pecuniary interest adverse to the client : Fair, and in writing: advised to seek independent counsel, full disclosure, informed consent (signed)

Answer 12

Must not acquire proprietary interset in cause of action or subject matter of litlgation the lawyers is conducting for a client. except: 1. acquire a lien authorized by law to secure L's fees and expenses AND 2. contract with client for reasonable contingent fee in civil case

Answer 13

Contingency fee is a fee that is dependent on the successful resolution of a client's case payable from judgment proceeds **ABA** FC, ED, TD, EO (For Christ's education deficit, to Day , Everyone out) Must be reasonable, written, signed by C and contain: * how fee is calculated, incl. percentage L gets if case is settled before trial, * what expenses to be deducted from recovery * whether deductions made before or after contingency fee calulated; and * what expenses client must pay regardless of outcome. At end of case must give client written statement : outcome of case, remittence to client and how remittence was calculated. **CA** If reasonably foreseeable greater than $1,000 then: * in writing (unless emergency or otherwise impractical) * fee not set by law and subject to negotiation * how client will be charged for work not covered by fee agreement. NOT ALLOWED in CRIMINAL AND DOMESTIC FEE CASES

Answer 14

Fees generally/amount - **ABA -** must be reasonable, Factors - time and labor, novelty/difficulty of the work; customary fee within the locality; reputation of attorney, fixed or contingent. **CA** not illegal or unconscionably high. (based on facts and circumstances existing at time of agreement except where parties contemplate that the fee affected by later events) Factors for unconscionability: * L failed to disclose material facts * whether L engaged in fraud or overreaching in negotiating or settling fee * relative sophistication of L and client * whether c has given informed consent to fee **CA** requires a writing unless under $1,000, corporate client, client states in writing they do not want fee agreement, routine services for regular client, or emergency/impracticality

Answer 15

**CA** only L must not directly/indirectly purchase property in action or proceeding inwhich L /L personally or professionally afiliated is acting as lawyer for party or executor etc... or Represent the seller in an action/proceeding in which purchaser is spouse/relative of L or other L in firm and employee of the L or the firm.

Answer 16

no sexual relationship with C unless predates L-C relationship. If org: rule applies to constitutant of org who supervises/consults with lawyer re orgs legal mattes also must consider will it materially limit rep and implicate general conflict of interest rule for current clients NOT IMPUTED CA includes exemption for when L and C get married/DPs

Answer 17

Cannot do so without consent (unless becomes generally known/exception to duty of confidentiality applies)

Answer 18

L must not unless former client gives informed consent confirmed in writing. Matters are substantially related if they 1. involve the same transaction/legal dispute 2. substantial risk that confidential factual information that would have normally been obtained in prior repesentation woudl materially advance the client's position in the subsequent matter

Answer 19

IF L aquired material confidential info about the matter while working at the firm, L must not subsequently rep another person without informed consent confirmed in writing.

Answer 20

L is DQ'd from repping client because of conflict with former client and new firm will be as well unless L is properly screened, does not share fees and former client given notice CA - only if L did not substnatially participate in the same or substantially related matter while at prior firm.

Answer 21

L's former firm not prohibited from rep of person with interests materially adverse to those of a client of formally asosciated L not currently repped by the firm unless: 1. matter is the same or substantially related to that in which the formerly associated L repped the client; and 2. remaining lawyers in the firm have protected confidential info that is material to the matter.

Answer 22

L who obtains confidential info during PC consult must not later rep client adverse to PC in same or substantially related matter if info could be significantly harmful ( in CA - material ) to a PC unless both C and PC provided informed consent confirmed in writing. Imputation to others cured if other L's demonstrate: 1. DQ's L took care to avoid exposure to more confidential info than was necesary to determine whether to rep PC; 2. demonstrate that Dq'd L is timely screened and will not share in fee; 3. give written notice to PC

Answer 23

Private W following Gov't Work: must not rep private client in matter (specific facts and specific parties) in which L personally and substantially participated while in gov't service unless gov't agency gives informed consent confirmed in writing. Imputation cured if screened, not sharing in fees, and written notice. Gov't W following Private work - must not participate in matter in which they participated personally and substantially UNLESS appropriate gove't agency gives informed consent confirmed in wirting.

Answer 24

L must not rep private client in matter in which they have participated personally and substantially while serving UNLESS all parties to the proceedings give informed consent confirmed in writing. Imputation cured if DQ'd L is screened and does not sure in the fee adn written otice given to parties/tribunals **CA** - if mediator or settlement judge then imputation cannot be cured.

Answer 25

L may require an advance payment but L must refund unearned portion if services are not performed/fired L not required to refund true retainer fee (to ensure L's availability) CA- additionally prohibits L from demonimnating any fee as "non refundable ,or earned on receipt unless true retainer AND Client agrees in writing after disclusre that they will not be entitled to any refund.

Answer 26

okay so long as not a proprietary interst in cause of action or subject of litigation - also check for business transaction/adverse pecuniary interest - FDIAIC - CA does not have a rule so pecuniary interest

Answer 27

recover in quantum meruit for reasonable value of services at end of case if discharged for misconduct might forfeit

Answer 28

**ABA** * When L recieves funds in relation to C's case, must place funds in client trust account; and * promptly notify lcients when funds are received. **CA** * L owes duty to notify client as well as 3rd ptys to whom L owes legal duty * Client Trust Account in CA unless client provides written consent to maintain it elsewhere and has connection to "elsewhere"

Answer 29

Can be deposited in firms operating account provided that lawyer discloses to cleint in writing that client - 1. had right to require fee to be placed in trust account instead 2. entitled to a refund of any unearned amount if more than $1K then disclosures above must be set forth in a writing signed by client.

Answer 30

**ABA** * upon recieving must notify interested party * promptly deliver that which is entitled identfy and * label securities and properties and put them in a place of safekeeping as soon as practicable * must keep records of client account funds and other property for at least five years after final distribution. **CA -** absent good cause within 14 days of receipt of funds.

Answer 31

Okay if total fee is reasonable and either: split in proportion to services provided by each lawyer or in some other proportion if each L assumes joint responsibility for the matter AND Client agrees to split in writing that discloses the share each lawyer will receive CA permits true referral fees and requires: L divide the fees in writing, total fee must not be increased solely by reason of the agreement to divide fees client must provide written consent to the division and its tersm

Answer 32

Only if: * paying death benefit to estate of dead lawyer/designated persons * purchasing law practice of dead, disabled, disapeered L and paying it to estate/relatives * including nonlawyer employees in compensation/retirement plan funded by legal fees * sharing court awarded legal fees with a nonprofit org. that employed/recomended lawyer CA adds: * sharing not court awarded legal fees with nonprofit that employed or recommended lawer in the matter if :org is exempt from federal income tax, L enters into written agreement to divide the fees, L provides written disclosure to client of division and obtains written consent from client, and total fee not increased solely by reason of the agreement. * paying prescribed registration, referral or other fee to lawyer referral service established and operatd in accordance with CA referral services.

Answer 33

L must not knowingly make a false statement of law to the court or fail to correct a previous false statement L must not knowingly fail to disclose to the court legal authority in the controlling jurisdiction that is directly adverse to the client's position and that has not been disclosed by opposing counsel. CA adds knowingly misquoting to the language of book, statute, decision or other authority.

Answer 34

L must not knowingly make a false statement of fact or fail to correct a previously made false statement of material fact L under no obligation to volunteer fact harmful to case but in ex parte proceeding, L must inform tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision

Answer 35

Must refuse to offer evidence that L knows is false. May refuse to offer evidence that they reasonably believe is false except for criminal D's testimony on own behalf. If they find out later must take reasonable remedial measures 1. urge client to cooperate in withdrawing or correcting it; 2. if unsuccessful seek to withdraw and or take other measures to striek evidence, 3. all else fails disclose info to judge even if info protected by confidentiality CA= remedial measures must not involve revealing info protected under duty of confidentiality

Answer 36

if L knows D intends to testify falsely/did so L must take remedial measures above CA- may offer D's testimony in narrative form if L has made reasonable efforts to dissuade C from testifying falsely and unsuccessfully sought permission to withdraw.

Answer 37

Until end of proceedings when final judgment affirmed on appeal or time for appeal has expired.

Answer 38

L msut not take a position that is factually or legally frivolous (no good faith argument) L for D in criminal case may conduct Defense so that prosecutor must prove every necessary element of case.

Answer 39

L must make reasona efforsts consistent with interests of client. CA - alternative: prohibits L from using means that have no substantial purpose other than to delay or prolong proceeding or to cause needless expense.

Answer 40

L must not seek to influence tribunal by improper means. CA- probhibits L from directly or indirectly giving or lending anything of value to a judge official, or employee of a tribunal except as permitted by stattue, applicable coade of judicial conduct or standards governing employees of the tribunal (ex. campaign funds for judges).

Answer 41

Not unless authorized by law or court order CA - during jury selection and trial lawyer connected with a case must not communicate directly/indirectly with a prospective juror or juror about any subject and during trial L not connected with a case must not communicate directly or indirectly with a known juror about the case. L prohibited from conducting an investigation of prospective jurors/jurors in a manner likely to influence the state of mind extends to family members of such persons L must promptly reveal to court imprper conduct by or toward jurors/prospectives/family members. BOTH: L may generally interview discharged jurors/prospective jurors unless (1) comm prohibited by law, (2) juror has made known desire not to comunicate, (3) communication involves misrepresentation, coercion, duress or harassment.

Answer 42

L msut not act as advocate at trial is likely to be necessary witness UNLESS: 1. testimony will relate soley to an uncontested issue 2. testimony will relate solely to nature and value of legal services they rendered in that case 3. withdrawl would cause substantial hardship to cleint. (Not in CA but allows for informed written consent) (not imputed to other lawyers at firm)

Answer 43

At trial L must not: 1. assert personal knowledge of facts 2. refer to inadmisible material (not in CA) 3. state a personal opinion about justness of case, culpability of civil litigant, or guilt or innocense of accused (CA only guilt or innocence) . No disrupting court proceeding or depo- only ABA

Answer 44

* mut not falsify evidence or assist in perjury. must not unlawfully obstruct party's access to evidence * **CA ** prohibits advising person to secrete themselves or fless the jurisdiction so unavailable as a witness. * suppressing evidence that the lawyer or the lawyer's client has a legal duty to produce

Answer 45

* ABA only may advise not to volunteer info to opponent/party but only if: person is a client or client's relative, employee or agent L reasonably believes that the person's interests will not be harmed by not volunteering info

Answer 46

not if prohibited by law, except: reasonable travel and incidental expenses compensation for loss of time in attending and testifying reasonable fees to expert witnesses but payment must never be contingent on testimony or outcome of the case

Answer 47

ABA only - L must not make frivolous discovery request or fail to make reasonable efforts to commply with legally proper discovery request made by the adversary.

Answer 48

L must not violate a court rule or order - but may refuse to obey for purpose of making good faith challenge

Answer 49

not threaten to present criminal, admin or dsciplinary charges for the purpose of gaining an advantage for the client v. good faith belief that adversary engaging in illegal or unethical conduct.

Answer 50

* Refrain from prosecuting a charge that P knows is not supported by probable cause * make reasonable efforts to ensure accused has been advised of the right of counsel and reasonable opportunity to obtain * Not seek to obtain from unrepped accused waiver of important pretrial rights * make timely disclosure to defesne of all evidence/info prosecture knows would tend to negate the guilt of the accused or mitigate offense (unless relieved of responsibility by tribunal) * Exercise reasonable care to prevent investigators or other persons assisting prosecutor from makeing an extrajudicial statement prosecutor would be prohibited from making. * ABA only - not subpoena L to present evidence about a client unless P rasonably believes info not privileged, evidence is essential and no feasible alternative.

Answer 51

NEw Credibal and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense, the prosecutor must promptly disclose evidence to a court or authority (in P's jurisdiction then disclose to D and make reasonable efforts to cause and investigation. Clear and Convincing evidence in own jurisdiction then must remedy

Answer 52

L who is connected with a case (or any associated lawyer in their firm or agency) must not make any extrajudicial statement tha thte lawyer reasonable shoudl know. 1. be publicly disseminated 2. will have substantial liklihood of materially prejudicing the case (dry facts permitted) L does have right of reply: reasonable lawyer woudl believe is required to protect client from substantial undue prejudicial effect of recent publicity not initiated by the lawyer or lawyer's client.

Answer 53

No false satements of material fact to 3rd person in course of repping client (puffery allowed) puffery includes - estimates of price or value and statement of party's intentions to settlement Failure to disclose material fact, client's crime or fraud: must disclose when necessary to avoid assisting client in a crime or fraud unless forbidden by confidentiality - if so L must withdraw

Answer 54

L must not communicate about subject of the represenatation with person they know to be representated by cousnel in the matter unless (1) person's counsel grants permission, (2) authorized by law/court to make communication CA- no prohibition of lawyer from communicating with public official or public entity. Orgs: supervises directs or regularly consults with orgs lawyers concerning the matter current employee or constitutent with authority to obligate org. any current employee or other constituent whose act or omission in connection with the matter may be imputed to the org. Does not apply to former employee CA orgs- provides rule applies to any current officer director partner or managing agent of cour or employee/constitutent with the act or eomission.

Answer 55

may communicate directly but: * L must not state or imply that they are disinterested. * If unrepped P misunderstands L's role L must make reasonable efforts to correct the misunderstanding * if in conflict with client's interest NO legal advise except to obtain counsel CA - Additionally. must not seek to obtain privileged or otherwise confidential info that L knows/should know unrepped person may not revewal without violating a duty to another, or which the lawyer is not otherwise entitled to receive

Answer 56

Must inform parties that L is not repping them. and explain role as 3 pty neutral. and where ac privilege plays in.

Answer 57

ABA: when L receives a document related to the representation of the lawyer's client and knows or reasonably should know that it was sent by mistake, the lawyer must promptly notify sender so they can take protective measures CA - * only applies when L knows or reasonably should have known that writing is privileged or subject to WPD. * and L must refrain from examining the writing anymore than necessary to determine privileged or WPD * L should return the writing to the sender, seek and agreement with the sender regarding disposition of the writing or seek guidance from a tribunal

Answer 58

MUST BE TRUE AND NOT MISLEADING 1. identify name and contact info of a t least 1 lawyer or law firm responsible for content. Misleading if: * lead a reasonable person to reach and unfounded conclusion * reports L's achievements on bhalf of clients and would lead a reasonable person toform an unjustfied expection of receiving same results * Contains unsubstantiated comparison or claim of L's services or fees presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated CA - stating or implying L is able to provide legal services in languages other than english unless they can or jcomm states title of person in firm who can. Stating/implying no fee without recovery unless comm expressly discloses whetehr or not client liable for costs. PROHIBITS: * Guarantee/warranty of outcome of case * words/symbols that suggest quick cash or settlement * impersonation of L or C without disclosing impersonation * Dramatization of accident/event without disclosing dramatization * contingent fee offer that does not warn C who loses a case must still pay litigation costs.

Answer 59

Misleading where: * implies a connection with gov't agency, public or charitable legal services org. * states/implies L's practice in partnership or other oga. when not the case * includes name of L or deceased L not associated with firm or predecessor firm.

Answer 60

May communicate that you practice in particular feilds of law but may not state or imply they are certified as a specialist in particular field unless - are in fact certified by an approved org AND name of the certifying org is clearly identified in communication.

Answer 61

* targeted communication initiated by or on behalf of lawyer directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and that diretly or indirectly offers to provide legal services in that matter. not by live person to person contact solicit employment when doing so is for lawyers pecuniary gain. CA includes real time electronic contact: may include tesxt messages and chat room messages. But allowed IF: target is- * another lawyer or * someone with home L had close personal or prior professional relationship * or person who routinely uses for businesses purposes the type of services offered by the L (NOT IN CA)

Answer 62

Generally OK; CA requires targeted comms to include "Advertisement or similar words" on outside envelope and at the beginning and end of any recorded electronic comm. unless: 1. target is another lawers/close personal or prior professional relationship and 2. apparent from context of comm it is an advertisement.

Answer 63

1. target made known they do not want to be solicited by L 2. solicitation involves coercion, duress, harassment

Answer 64

okay to use plan that uses personal contacts to enroll members as long as plan only contacts persons who are not known to need legal services in a particular matter covered by the plan. And cannot be one that L owns or directs org. that operates plan.

Answer 65

Generally no but: * pay reasonable costs of permitted adverts * pay usual charges of legal service plan, referral service or qualified lawyer referral service. * pay for purchase of law practice * refer a client to another lawyer or non lawyers profess as part of reciprocal referral arrangemtn but such arrangement must not be exclusive and client must be informed of existence and nature of agreement * give gift/gratuity as token of appreciation provided not offered or given in consideration of understanding that more would be forthcoming for more referrals

Answer 66

Prohibited from : * practincing law in jurisdiction where doing so violates regulation of the legal profession in that jurisdiction, or * assiting another in doing so

Answer 67

Prohibited activities: legal consultation, negotiations, appearances on client's behalf, handling client's funds, other activities that constitute practice of law Permitted: research etc... Written notice to state bar and clients - at time of engagement and after employment terminated.

Answer 68

no partnerships or other org with non lawyer if org activities consist of practice of law no non lawyer interst in firms, corporate officer or director or direct or control l's professional judgment

Answer 69

clearnly unethical misconduct even if just following orders not for acting in accordance with supervisor's reasonable resloution of an arguable question of professional duty

Answer 70

when L ordered misconduct/or knew and ratified it or L ws partner/manager/ or direct supervisor and knew about misconduct at a time when consequences could have been avoided or mitigated and failed to take reasonable remedial action

Answer 71

* must not make a statement that the lawyer knows is false (or reckless disregard to the truth or falsity) about qualifications or integrity of juedge, hearing officer, *public legal official (not or about a candidate for judicial or legal office NOT IN CA*

Answer 72

A who knows that another lawyer has violated the RPC in such a way that it rasies a substantial question as to the lawyers honesty trustworthiness or fitness as an L msut report to appropriate professional authority. An L who knows about a judge's violation of the code of judicial conduct that raises a substantial question re judges fitness must report UNLESS: info protected by duty of confidentiality, OR info gained via approved lawyers' assistance program.

Answer 73

* sued for malpractice 3x in 12 months * found civiloy liable for fraud breach of fiduciary duty * sanctioned for more than $1,000 (not discovery) * charged with a felony * convicted of serious crimes * disciplined in another jurisdiction

Answer 74

ABA: * reasonable diligence in representing client which includes dedication to their client's interests. CA * lawyers must not intentionally, recklessly, repeatedly, or with gross negligence fail to represent their client diligently.

Answer 75

ABA rules require a lawyer having managerial or direct supervisory authority over a nonlawyer to makereasonable efforts to ensure that the person's conduct is compatible with the profesional boligations of the lawyer. x