Professional Responsibilities Flashcards
PR General Orangization
approach
- by attorney’s act or event or incident, chronologically
- Discuss in the subheadings the duties implicated by that event
- Two IRACs:
a) one under ABA rule and its application and
b) one under CA rule and its application - In each Application:
a) explain how and in what ways the attorney may have breached the duty
b) INTENSIVE AND COMPLETE USE OF FACTS REQUIRED
(1) Application” requires patience, and is a fact-intensive exercise
letting others violate rule
The rules prohibits violating the rules through the actions of another.
advertisement
Approach
- General advertising
- particular subjects
a) advertising
b) solicitation
c) direct mail solicitations
Advertising**
Duty of Truthful Advertising
Advertising is a general atttempt to obtain business while solicitation is a directed contact with particular individuals.
A lawyer cannot make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
a) contains a material misrepresentation of fact or law; or
b) omits a fact necessary to make the communication considered as a whole not materially misleading.
Both ABA and CA prohibit a lawyer from compensating, giving or promising anything of value to persons for recommending the lawyer for employment. Nether rules prohibits paying reasonable advertising costs.
Solicitation**
Duty of Truthful Advertising
A lawyer must not seek fee-paying work by initiating live person-to-person contact with a prospective client who is not a former client, current client, or someone with whom the lawyer has a personal, professional, or family relationship. However, absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, non-deceptive letters to persons known to face a specific legal problem.
The California RPC requires written or recorded communications with prospective clients who are known to need specific legal services must be labeled as “advertising material.”
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a business card is a “communication” under the California rules.
Solicit for Pro bono
A lawyer who wishes to challenge a law and seeks to represent a client pro bono for such purpose can solicit a client since he has no interest in pecuniary gain.
Truthful Advertising**
CAL RPC/not stated
An advertisement must be truthful.
Cal Law prohibits (Business & Professions Code):
a) A guarantee or warranty of outcome
b) Words or symbols that suggest quick cash or a quick settlement
c) An impersonation of a lawyer or client without disclosure that is an impersonation
d) A dramatization of an accident or other event without disclosure; and
e) A contingent fee offer that does not warn that client who loses a case must still pay litigation costs if that is the arrangement, , unless, if appliable, it also states that client will be responsible for any costs advanced by the lawyer if no recovery is obtained; and,
f) Advertisements containing any false, misleading, or deceptive statements, or omissions of any fact necessary to make the statements made not false, misleading, or deceptive.
write only relevant factors
Cal B&P Code lists of practices that are presumed false or misleading:
a) A message as to the ultimate result of a specific case or cases presented out of context without adequately providing information as to the facts or law giving rise to the result.
b) The depiction of an event through methods such as the use of displays of injuries, accident scenes, or portrayals of other injurious events which may or may not be accompanied by sound effects and which may give rise to a claim for compensation.
c) A message referring to or implying money received by or for a client in a particular case or cases, or to potential monetary recovery for a prospective client.
(1) A reference to money or monetary recovery includes, but is not limited to, a specific dollar amount, characterization of a sum of money, monetary symbols, or the implication of wealth.
Direct Mail Solicitations
Targeted direct mail solicitations not involving live person-to-person contact are permitted unless (1) the lawyer knows that the prospective client does not wish to receive communications from the lawyer or (2) the communication involves coercion or harassment
Duty to Make Reasonable Fee Arrangements
When the lawyer has not regularly represented the client, the lawyer must communicate the reasonable legal fee, preferably in writing, to the client before or within a reasonable time after commencing the representation. CA RPC specifically requires representation to be in written agreements if the total fee is reasonably expected to exceed $1,000.
Two main issues concerning Fees
not rules
- Financial Assistance to clients and the concept of “buying” Clients through offers of gifts, loans, or similar devices/financial arrangements; and
- Whether a fee is a Reasonable Fees
Financial Assistance to Clients
ABA Model Rule
In ABA model rule, A lawyer must not provide financial assistance to a client in connection with litigation, unless:
(i) a lawyer may advance court costs and litigation expenses, the repayment of which may be contingent on the outcome of the matter; and
(ii) a lawyer representing an indigent client may pay court costs and litigation expenses on behalf of the client.
The ABA Rules implicitly prohibit buying a client with promises of financial assistance.
Summary:
* No financial assistance except:
o Advance court costs
o Pay indigent client costs
* Applies only to litigation
Financial Assistance to Clients
CA RPC
The CA RPC also limits financial assistance, but it:
(i) applies in all contexts, not just in litigation;
(ii) it explicitly prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business expenses; and
(iii) unlike the ABA Rules, permits a lawyer to lend money to her client for any purpose after the lawyer is hired if the client gives the laywer a written promise to repay the loan and the written agreement complies with other rules concerning financial transactions with clients.
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Note: But even if financial assistance is permitted, it creates a conflict between the lawyer’s and client’s financial interests that you must also discuss.
Summary:
* Prohibits promise to pay debts
* Rule of limiting financial assistance applies in all situations
* Permits loans AFTER representation begins WITH written agreement BUT implicates financial conflict rules
Reasonable Fees
Under the ABA rules, there are a number of factors in determining a reasonable fee, including difficulty of the matter, the prevailing fees in the locale, how much time and business a lawyer must give up to take the case, and the like. The California rule is to the same effect in that it prohibits “unconscionable” fees—and the factors includes the ones above plus the attorney to receive client’s informed consent.
Contingent Fees**
Contingency fees are generally permitted in California, including landlord-tenant cases. A contingent fee agreement must be in writing, and must state: (1) what expenses the client must pay, whether or not she wins the case; (2) how the fees is to be calculated; (3) what expenses are to be deducted from the recovery; and, (4) whether the contingency fee is on the gross or net recovery. [There, contingent fee offer must warn a client that they must still pay costs even if they lose the case if that is the agreement.]
Rule of Prohibiting Contingent Fee
ABA & Cal prohibit contingency fees in:
1. criminal cases, and
2. in domestic relations cases regarding dissolution, spousal support, or a property settlement in lieu of spousal support.
CA Fee Agreement
California requires a lawyer to communicate fee rates to clients in writing where it is reasonably foreseeable that the total fees and expenses will exceed $1,000 in non-contingency fee cases, except in the following situations:
1) the client is a corporation;
2) the client states in writing that she does not want a written fee agreement;
3) the legal services are the same kind of services that the client has previously received and paid for;
4) the lawyer acted in an emergency to protect the client’s rights; or,
5) a writing is impractical for other reasons.
CA Fee Agreement Requirements
The written contract must contain:
1. the basis for compensation, including but not limited to hourly rates, statutory fees or flat fees, and other standard rates, fees, and charges applicable to the case;
2. the general nature of the legal services to be provided to the client; and
3. the **respective responsibilities of the attorney **and the client as to the performance of the contract.
Failure to comply with the writing requirement renders the contract voidable at the option of the client, and the lawyer can only collect a reasonable fee.
Flat Fees
Under CA, a lawyer can charge a flat fee for a specified service and collect the flat fee in advance.
ABA has no counterpart to this rule.
Fee Splitting with Non-lawyers
Under both ABA and CA rules, a lawyer MAY NOT split a fee with a non-lawyer.
Fee Splitting with Lawyers
ABA Model Rule
Under the ABA rules, a lawyer may split her fee with another attorney, as long as she obtains her client’s consent, it does not increase what the fee otherwise would have been, and the fee is proportional to the work done or the other attorney takes joint legal responsibility for the representation.
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a lawyer may split her fee with another attorney (who is not in the same firm), as long as:
* she obtains her client’s consent,
* it does not increase what the fee otherwise would have been, and
* either the fee is proportional to the work done, OR each lawyer assumes joint responsibility for the representation.
Summary:
* Client’s written consent (confirmed in writing)
* No increase in client cost
* Condition that:
o Proportional to work done OR
o Both attorneys assume joint legal and ethical responsibility
Fee Splitting with Lawyers
CA RPC
In CA, the lawyer may split fees with another lawyer, the lawyer must obtain her client’s informed written consent and it does not increase what the fee otherwise would have been.
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In California, the lawyer may split fees with another lawyer, the lawyer must obtain her client’s informed written consent, but, unlike the ABA Model Rules, there is no proportionality rule, so that any fee split is permitted if it does not increase what the fee otherwise would have been.
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to split a fee with another attorney, there must be:
* a written agreement between the lawyers regarding the fee split and
* the lawyer must obtain her client’s informed written consent.
* Any fee split with an attorney is permitted if it does not increase what the fee otherwise would have been and with client’s consent.
* No proportionality rule.
* No requirement that both attorneys take on full professional responsibility for the case.
Summary:
* Agreement with another lawyer in writing
* Client informed written consent
* No increase in cost
Referral Fees – Voluntary Payment from Attorney to Referrer
A lawyer may not split fees with a non-lawyer, pay “consideration” to a non-lawyer for referring cases, or engage in the practice of law or share legal income with a non-lawyer. Instead, the ABA rules permit the lawyer to give a “nominal gift” as an expression of appreciation. The CA rules permit a lawyer to give a “gratuity” to someone who makes a referral to the lawyer.
Rule of Reciprocal Referral
Both ABA and RPC permit reciprocal referral agreements so long the client is informed and the agreement is not exclusive.
Naked Referral Fees
CA
California is one of the few states that allow “naked referral fees” where the referring lawyer does no work on the case. The rationale for allowing these gifts to the referring lawyer is to encourage lawyers not to keep cases that are outside their area of competence, but to refer the client to a lawyer who can truly serve the client well.
Prohibit Capper/Runner
ABA and California rules prohibit a capper for consideration. A capper is a person who makes contact with the potential clients in distress for the purpose of procuring busienss for the attorney.
Duty of Loyalty and Avoidance of Conflicts of Interests
Approach
- Conflict of interest
- Continued representation
Duty of Loyalty - for Clients best interests
An attorney has a duty of loyalty to always act in her clients’ best interests and not to engage in conflicts of interest or compete with the client.
Duty of Loyalty and Avoidance of Conflicts of Interests
[current]
An attorney owes his client a duty of loyalty. A conflict of interest can be actual or potential. A conflict of interest arises where the attorney’s or a third party’s, including a current or former client, interest might limit or adversely affect the attorney’s decisions or ability to represent the client.
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An attorney owes his client a duty of loyalty. A conflict of interest can be actual or potential. The undertaking of representation of [client] created a [potential/actual] conflict of interest. [state how the affected clients have different interests and attorney owes his/her client a duty of loyalty.] A conflict of interest arises where the attorney’s or a third party’s, including a current or former client, interest might limit or adversely affect the attorney’s decisions or ability to represent the client.
[note how many conflicts there are and then list one out]
e.g., affected parties have different interests whom atty owed duty
Different tenants can have different interests, and attorney owes his client a duty of loyalty.
Disclosure for Potential Conflict
optional
If an attorney faces a potential conflict of interest with their own interests, attorney must make disclosure to the clients. Furthermore, ABA Rules requires written consent.
Both disclosure and consent require something in writing that clearly explains the nature of the conflict and only a detailed factual explanation of how the conflict could arise or has arisen would be helpful to a client.
Continued Representation for Joint Representation (concurrent conflict)**
Generally, with any concurrent conflict, the ABA and CA Rules permit continued representation if: (1) the lawyer reasonably believes he can competently and diligently represent each client; (2) the representation is not prohibited by law; (3) the clients’ claims do not involve the one client’s direct assertion of a claim against another; and (4) each affected client gives written informed consent. The ABA only requires that the consent be confirmed in writing, while CA requires the actual informed written consent of the client be obtained.
Waiving the Conflict
ABA v. CA RPC
ABA
* Lawyer reasonably believes he can represent each
* Not prohibited by law
* Conflict is not direct in same case
* Obtains informed, written consent
o But written consent need only be CONFIRMED by the client
CA RPC
* Lawyer reasonably believes he can represent each
* Not prohibited by law
* Conflict is not direct in same case
* Obtains informed, written consent IF conflict is between clients / former clients; or poses a significant risk the representation will be materially limited by interests of lawyer, other clients, or third persons
o Consent must be signed by client, not merely confirmed by non-objection
When Written disclosure to Client is Required
CA
In CA, where there is any kind of conflict, informed written consent is always required even if there is no conflict, when the lawyer or someone in their firm has a legal, business, financial, professional or personal relationship with a party or witness in the same matter.
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But even if no significant risk the representation will be limited, written disclosure to the client is required where:
1) the lawyer has, or knows that another lawyer in the lawyer’s firm has a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter; or
2) another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer or another lawyer in the lawyer’s firm, or has an intimate personal relationship with the lawyer.
Conflict of Interest
not stated rule yet
A conflict of interest exists when:
a) the representation of a client will be directly adverse to the interests of another client; or
b) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests, the interests of current client, a former client, a third person.
Types of Conflict
- Concurrent conflicts
- Conflict with current and former clients / clients of former firm
- Conflicts representing organizations
- Agreements limiting liability for malpractice
- Imputed conflicts
- financial interests and informed consent
- aggregate settlements in multiple representations
- insurance defense lawyer conflicts
- sexual relations with the client
- conflict rules involving government attorneys
- purchasing property at foreclosure
- solicitation of gifts
- media rights
- client property and records
- improper use of confidential information or a client’s secrets;
- being designated as a beneficiary of a gift, estate, or trust;
- financial assistance to the client
- compensation from another person than the client (including agreement by one client to pay all the clients’ bills, even though interests of the clients may conflict);
Prompt Disclosure for Legal Malpractice Claim
CA RPC only
California require a prompt disclosure to the client of any facts giving rise to any legal malpractice claim against the lawyer.
This is a type of conflict with the lawyer’s interest and separately a breach of duty of loyalty
Conflict also Required Informed written consent
A lawyer shall not represent a client, without informed written consent from each affected client and compliance with paragraph (d), when there is a significant risk the lawyer’s representation of the client will be materially limited by either (i) lawyer’s responsibilities to or relationships with another client, a former client, a third person, or (ii) by the lawyer’s own interests.
Even where no such significant risk appears, the California rule still requires written disclosure to the client where the lawyer has, or knows that:
(1) another lawyer in the lawyer’s firm has a legal, business, financial, professional, or personal relationship with or responsibility to a party or witness in the same matter;
(2)
(a) another party’s lawyer is a spouse, parent, child, or sibling of the lawyer;
(b) lives with the lawyer;
(c) a client of the lawyer or another lawyer in the lawyer’s firm; or
(d) has an intimate personal relationship with the lawyer.
Conflict in California
Tip
(1) where there is any kind of conflict, informed written consent is always required
(2) even if there is no conflict, when the lawyer or someone in their firm has a personal relationship with a party or witness, discuss the California’s requirement of disclosure.
(3) When there is potential Legal malpractice claim may arise, attorney give prompt disclosure
Conflict of interest - concurrent conflict**
2014 Q3 bar answer
An attorney has a concurrent conflict of interest when there is a substantial likelihood that her ability to represent her client will be materially limited by her own personal interests, her duties to another client, a former client, or a third party. An attorney may take on the representation despite the concurrent conflict of interest if the attorney can believes that she can competently and adequately represent the interests of the parties, and if she obtains written consent from all involved parties. California has no “reasonable lawyer” standard and does not require written consent, only written notice, when the interest is personal to the lawyer.
Duty of Loyalty to Former Clients
The attorney may not represent another person in the same or substantially similar matter where the new person’s interests are materially adverse to the former client.
Duty of Loyalty to Client from Former Firm
When an attorney moves to a new firm, that attorney may not represent a person in same or substantially similar matter to a client of the former firm (while the attorney was working there) if the new representation is materially adverse to the client of the former firm if that lawyer acquired confidential information of that client of the former firm.
Duty of Loyalty to Organizations**
Guide
Three Common issues:
a) Conflict between the organization and employees
b) Organization paying for representation of employees and directing attorney to act in a manner harmful to represented employee
c) Confidentiality issues – employee of organization often misunderstands (could be violation of duty of honesty)
Attorney represents organization, NOT its employees
a) So organization’s attorney must advised employee, who seeks to consult with the attorney, that they are not his clients and no confidentiality
b) If an attorney fails to so advise the employee, then the attorney have violated a duty of honesty to the employee.
Conflict from Agreement that Limits Malpractice
If a lawyer contemplates entering into an agreement limiting liability for past malpractice, the lawyer should:
a) Either withdraw or advise the client in writing to seek independent counsel and give the client an opportunity to do so;
b) advise the client that the lawyer is not advising the client as to the settlement; and
c) fully disclose the terms and effect in writing of such a settlement agreement that limits the lawyer’s liability to the client.
Prospective limit on liability
ABA v. CA RPC
A lawyer seeks to limit liability prospectively (1) allowed in ABA rules IF client is represented by independent counsel. In California, it is prohibited.
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Note: Prohibited in CA (CA RPC 1.8.8)
Imputed Conflicts
Generally, if a lawyer faces a conflict of interest, no lawyer in that lawyer’s firm may represent the client; i e., the lawyer’s conflict is imputed to all the other lawyers in the firm.
Definition of firm
not a stated rule
a) a private law firm (whether organized as a partnership, professional corporation, or similar association),
b) a corporate law department,
c) a governmental agency’s law office, or
d) the like structure where the lawyers practice together.
Imputed Conflicts Doesn’t Applied
List
General rule of imputed conflicts applies to the entire firm except:
1. Former government attorneys (see special rule)
2. Conflict is a purely personal interest.
3. Conflict caused by close family relationship.
4. Conflict resulting from the rule on sexual relationships.
Special Rules for Conflict Rules involving Government Attorneys -
Former government attorneys
ABA and CA rules prohibit a lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed, written consent.
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Conflicts caused by former and current government lawyers unless special rule applies
(1) This is true even if the lawyer will be on the same side of the case as the government agency.
(2) A matter is defined as a proceeding, investigation, application or other similar matter involving specific parties.
(3) Even if consent is obtained, the lawyer may not use confidential information obtained while working for the government.
Former Govt Attorney - Conflict Not Imputed
When the former govt attorney have participated personally and substantially in a matter with the government, the conflict may not necessarily imputed the firm if:
(1) the firm is large enough and
(2) conditions of a screening procedures similar to other conflicts are met:
(a) the disqualified lawyer is screened from any participation in the matter ;
(b) the disqualified lawyer does not share in any part of the fee earned (exclusive of a salary or partnership share established by prior independent agreement); and
(c) the government agency is notified of the screening arrangement.
Conflict is a purely personal interest.
Conflicts caused by a purely personal interest of the conflicted lawyer that will not inhibit other lawyers in the firm from representing the client competently and diligently
Conflict caused by close family relationship.
Conflicts caused by the conflicted lawyer’s close family relationship with another lawyer who is representing a different client in the matter
Screening
Conflict will not be imputed if the conflict is with a former client of attorney while at a different firm AND:
(1) Disqualified lawyer is timely screened for any participation in, or access to, the matter, along with periodic reminders of the screening
(2) Disqualified lawyer receives no part of the fee for the matter, other than a salary or partnership income established by prior independent agreement
(3) Written notice is promptly given to the affected former client and former client has opportunity to object or challenge in tribunal;
(a) Written notice includes notice of the client’s right to object and has his or her issue heard by a tribunal
(4) Certifications of compliance regularly provided to former client.
Atty’s conflict with client’s Financial Interest
duty of loyalty
An attorney has a duty of loyalty to her client to always act in the best interests of the client. This includes not acquiring an interest adverse to the interest of the client. California allows an attorney to obtain an interest adverse to that of her client in certain circumstances.
Financial Conflicts between Attorney and Client -
Financial Transaction and Informed Consent
Under this conflict, the Rules call either for withdrawal or informed written consent.
Whenever a financial transaction is involved:
a) The transaction must be fair and reasonable to the client;
b) Fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
c) Client must be informed in writing to seek the independent legal counsel’s advice to review the terms of the transaction and must be given reasonable opportunity to do so; and
d) Client understands lawyer’s role in the transaction (as the lender with a “security interest” in the judgment), and
e) Client gives informed written consent.
Purchasing Property at Foreclosure
CA RPC
California forbids a lawyer from:
a) Purchasing foreclosure property where the lawyer or affiliate represents a party, and
b) From representing a seller where the purchaser is a spouse, relative, or employee of the lawyer.
Solicitation of Gifts
Under both the ABA and California RPC, a lawyer must not solicit a substantial gift from a client or prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial gift from a client (including a testamentary gift), except when the lawyer is related to the client or the client is advised by an independent lawyer who certifies independent review.
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4. Element:
a) Under ABA and CA rules, the lawyer must not solicit:
(1) a substantial gift from a client or
(2) prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial gift from a client (including a testamentary gift),
b) Exception:
(1) when the lawyer is related to the client or the client is advised by an independent lawyer who certifies independent review
Undue Influence for Atty drafting instrument
In most jurisdictions, if the attorney prepares the instrument containing a gift to the attorney, it creates a rebuttable presumption of undue influence that invalidates the gift unless the presumption is overcome. In California, it is a conclusive presumption of undue influence when the instrument contains a gift to the drafter or their relative.
Media Rights
ABA Model Rules
ABA Rules state that, prior to the conclusion of client’s representation, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to an account based, in substantial part, on information relating to the representation.
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Express prohibition until after conclusion of representation
Media Rights
CA RPC
Since California case law recognizes that literary or media rights agreements create a serious conflict of interest between the lawyer and the client, the trial judge must ensure that the defendant fully understands the conflict. If the defendant does fully understand the conflict, he may waive it and continue to have the lawyer represent him. Otherwise, this conduct is ground for disqualification.
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* Not simlilar to ABA
* Trial judge must ensure defendant understands the conflict
Trial Publicity
CA and ABA both prohibit a lawyer from making an extrajudicial statement through public communication if the lawyer knows or reasonably should know that the statement will have a substantial likelihood of materially prejudicing the adjudication. There are several exemptions, including communicating any matters of record.
Sexual Relations with the Clients**
Under both the ABA and CA rules, a lawyer must not have a sexual relationship with a client. This rule does not apply if the lawyer and client had a consensual sexual relationship before they became lawyer and client. Even if there was a preexisting consensual sexual relationship, the lawyer should make sure that his ability to represent the client will not be affected by the relationship. Under California rules, any type of personal relationship with a party must be disclosed to the client.
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CA RPC
* Explicitly excludes if the client is spouse or domestic partner
* CA requires State Bar to try to obtain client’s statement before charging violation of this rule if report comes from third party
Sexual Relations from Constituent Within Client Organization
A lawyer who represents an organization (including as in-house counsel) must not have a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters
Aggregate Settlement
Under both the ABA and California rules, an attorney may not enter into an aggregate settlement without informed written consent of each client.
Client Property and Records
- A lawyer must hold property of clients or third persons separate from the lawyer’s own property.
- Client funds must be kept in a client trust account.
- The lawyer must keep records of client funds and other property and must keep the client informed and deliver funds or other property to the client or a third person entitled to receive the funds or property.
- If the lawyer is in possession of funds or other property to which the lawyer or a third person has a claim, and the client disputes the claim, the lawyer must keep the disputed portion of the funds in the trust account or keep the disputed property separate.
- The property must be immediately returned on request of the client, and cannot be held until client pays the bill.
- Lawyer may not pay or promise to pay client funds to any person other than the client without the client’s consent.
- In California, a lawyer must preserve records of client funds or other property for five years after the money or property is distributed.
Trust Account Rules
Where undisputed, funds due to attorney MUST be paid out to avoid commingling, and funds due client MUST be disbursed.
Where disputed fee, the disputed fee must remain in trust account until resolved. Once there is no dispute as to where funds go, undisputed funds must be paid out.
Duty of Competence
Duty of competence includes the duty to have the knowledge, skill, preparation, and thoroughness necessary to undertake [effective] client’s representation. [Thus, a lawyer is subject to discipline for neglecting a legal matter, failing to prepare a matter, and taking a matter the lawyer knows that she is not competent to handle.] If the lawyer doesn’t possess these things, she can still undertake representation if she can learn the necessary knowledge and skill within a reasonable time that does not cause the client undue delay, or associates and works with an experienced attorney, or faces an emergency situation. In California, the lawyer must possess the mental, emotional, and physical ability for performance of the lawyer’s role.
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Options if feeling not competent:
1. Learn the necessary knowledge within a reasonable time that does not cause the client undue delay, or
2. Associates an experienced attorney, or
3. Faces an emergency situation, or
4. Don’t take on the case
Factor to Withdraw
Duty of Competence
The Factor to withdraw is mental and physical fitness to handle a matter are a factor under both the ABA and California rules for whether a lawyer is required to withdraw from representation.
Duty of Care**
The duty of care is the duty to pursue a matter diligently and with the skill and attention that one would give to one’s own personal matters.
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Subrules:
a) This includes a duty to research matters thoroughly, to investigate facts, and to take the time necessary to adequately prepare a matter for a client.
b) It also means an attorney cannot withhold or refuse to do legal work to force payment of a bill. If nonpayment is an issue, then the attorney must follow the rules for permissive withdrawal which may require permission from the tribunal.
Duty of Communication**
A lawyer must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. A lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation and means to accomplish the client’s objectives.
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There is no rule prohibiting the use of an interpreter.
Duty of Communication - Settlement and Plea Offers
As part of the duty to communicate, a lawyer must communicate all reasonable settlement offers to a client in a civil matter as part of the duty to keep a client reasonably informed about significant matters in a case. California rules expressly require communication of written settlement offers to the client.
A lawyer must communicate all plea offers to a criminal client, and all reasonable settlement offers to a client in a civil matter.
Communication by Translation
a) Use of a translator is permitted
b) But having a joint client as translator is problematic and largely poses confidentiality, communication, and conflict issues
Disclosure of lack of professional liability insurance
CA only
CA Rule 1.4.2 – disclose lack of malpractice insurance
(1) requires that attorneys who know, or reasonably should know, that they do not have professional liability insurance must disclose that fact in writing to any client.
(2) This rule does not apply to government or in-house counsel, emergency situations, or to situations where the engagement will not exceed four hours.
NO ABA equivalent
Scope of Representation
The scope of an attorney’s representation may be defined and limited by the attorney-client agreement. In the absence of an agreement to the contrary, a lawyer should pursue the client’s objectives in all reasonably available legal ways.
However, a lawyer must not advise or assist a client to commit a crime or fraud, but they may discuss the legal consequences of a proposed course of action with the client. If a client insists on pursuing a course of conduct that is illegal or unethical, a lawyer may need to withdraw.
Duty of Confidentiality
list
Duty of confidentiality includes:
1. Attorney-client privilege
2. Attorney work-product privilege
3. confidentiality
Attorney-client privilege – evidence issue
The attorney cannot be compelled in a proceeding to disclose confidential communications with the client—and the duty of confidentiality.
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Issues concerning the privilege include its scope, duration, and exceptions
Attorney work-product privilege
The duty to protect the attorney’s thoughts, impressions, and litigation preparation.
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Lawyer’s thoughts and impressions
Confidentiality
Short Rule**
The duty of confidentiality involves the duty to keep a client’s confidences and secrets and not reveal it without client’s informed consent. The duty of confidentiality applies to information a lawyer acquires by virtue of the representation, whatever its source.
Confidentiality
and ABA and CA exception
Long rule
An attorney has a duty of confidentiality not to disclose any information related to the client’s representation. However, there is an exception to this rule which allows disclosure if the attorney learns that the client plans to commit a crime or fraud.
Under the ABA, a lawyer may reveal confidences if the client persists in engaging in criminal or fraudulent conduct that will result in death or serious bodily harm, or if the lawyer’s services are being used to perpetuate a crime or fraud by client that will result in serious financial harm.
California does not have rules equivalent to ABA. Instead, it imposes a duty on an attorney who has learned that his client plans to commit a crime or fraud to attempt to dissuade the client from his proposed actions and further, if that fails, to withdraw. If the withdrawal would be harmful to [client], a court might not let her withdraw and it may request why she is choosing to withdraw.
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The duty of confidentiality involves the duty to keep a client’s confidences and secrets.
Co-clients’ secrets:
When attorney represents more than one client in the same case, the attorney must obtain consent from each client to allow disclosure and use of confidential information to the other client. An attorney cannot keep secrets from co-clients. Such a situation would create a conflict of interest requiring withdrawal.
Confidentiality: disclosure and consent from multiple clients
Representing multiple client
When represent more than one client in the same case, the attorney must obtain consent from each allowing disclosure and use of confidential information to the other client. An attorney cannot keep secrets from co-clients. Such a situation would create a conflict of interest requiring withdrawal.
Acting competently to Preserve Confidentiality
As part of the duty of confidentiality, ABA specifically requires an attorney competently preserve confidentiality i.e. make reasonable efforts to prevent inadvertent, unauthorized disclosure, or unauthorized access to a client’s information.
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As part of the duty of confidentiality, the ABA specifically requires a lawyer to act competently to preserve confidentiality – i.e., make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.
agency 1
Scope of Privilege
Scope means that the privilege extends to those persons necessary to the attorney’s representation of the client, and to conversations when a client is seeking to decide whether to employ the attorney.
Scope - Duration
Duration means that the privilege survives the termination of the relationship, and death of the client.
3 Exceptions to Privilege
a) the crime-fraud exception (client seeks to employ attorney to assist in committing a crime or fraud);
b) issues relevant to a breach of the attorney-client relationship (malpractice suit or suit for fees); and
c) civil litigation between two former joint clients of the attorney.
Breaching Confidentiality
ABA Rule (permissive)
* consent or implied authority to disclose
* disclosure to prevent future death or serious bodily harm
* disclosure to prevent or rectify substantial financial loss
* disclosure required by final court orders
* disclosure necessary to collect a fee or protect the lawyer from a criminal charge or civil litigation
* Fee collection litigation
* Ethics defense
* Malpractice defense
* Remedy false testimony by client
* disclosure to the extent necessary to remedy false testimony by the client.
CA - Disclosure where the client gives informed consent and:
CA Rule
* prevent a crime that is likely to result in death or substantial bodily harm
CA Case Law
* Final court order
* Fee collection litigation
* Ethics defense
* Malpractice defense
* Criminal defense
California rule requires the attorney to:
* first attempt to persuade the client not to commit such a crime or to inform the client of the attorney’s ability to disclose the confidential information.
* In any event, the disclosure is limited to the information necessary to prevent the threatened crime.
Reporting Out
ABA
* Allows organization’s lawyer to report out (reveal Confidential information) when lawyer believes violation of legal obligation by organization reasonably certain to result in substantial injury to organization
* permits a lawyer to “report out”—to reveal information concerning the wrongdoing in an organization where the lawyer believes it is necessary in the best interests of the organization. To this extent, the ABA Model Rules here supersede the duty of confidentiality.
CA RPC
* Does NOT allow reporting out. The Duty of confidentiality prevails. [as of now, lawyers can report out]
* Lawyer would or must go to high(est) authority within organization
* If that fails, withdraw.
* Could lawyer report to Cal Bar??
Sarbanes-Oxley
If a securities lawyer becomes aware of credible evidence that her client is materially violating a federal or state securities law, she must report the evidence to her client’s chief legal officer (“CLO”). The same reporting duty applies to credible evidence that one of her client’s personnel has breached a fiduciary duty under federal or state law, or has committed a “similar material violation” of federal or state law.
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Potential conflict with CA RPC if securities lawyer notifies SEC
Who the securities lawyer should report to
- Chief legal officer
- Board of directors
- Audit committee
- Committee of outside directors
- Law authorizes report to SEC
Duty of CLO after receiving report
The CLO must investigate the situation to determine whether a violation occurred.
If the CLO concludes that a violation occurred, the CLO must take all reasonable steps to get the client to make an “appropriate response.”
a) That means that the client must stop or remedy the violation and make sure it does not happen again.
b) The CLO must report those results to the securities lawyer.
If CLO fails:
If the securities lawyer believes that the CLO did not achieve an appropriate response from the client, the securities lawyer must report the evidence to either the client’s board of directors, the audit committee of the board, or a committee made up of outside directors.
Security Lawyer Reporting Out
Federal Law
A securities lawyer may (under federal law) reveal to the SEC any confidential information that is reasonably necessary to:
a) stop the client from committing a violation that will cause substantial financial injury to the client or its investors;
b) rectify such a financial injury if the lawyer’s services were used to further the violation; or
c) prevent the client from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the federal government.
The federal law cannot, however, authorize violations of a state’s rules of professional conduct.
Security Lawyer Reporting Out
CA RPC
- California’s RPC do not permit such a disclosure of confidential information to the SEC, or anyone else for that matter.
- Thus, there is a potential conflict for a California lawyer between his options under Federal law and his duty under the California RPC.
- The Sarbanes-Oxley Act does not require the disclosure that is prohibited under the California RPC, there is no conflict and thus no pre-emption of the California RPC, so the attorney probably cannot disclose to the SEC without risking discipline.
Duty to Profession - Unauthorized Practice of Law
A lawyer cannot allow an employed disbarred attorney to give legal advice or counsel to a client. Under the ABA rules, a lawyer may not assist another in the practice of law in a jurisdiction in which that individual is not licensed to practice and [acts that required person to exercise professional judgment].
- At a minimum it includes appearance in court in a representative capacity, legal advice, and preparation of documents by which legal rights are secured.
- [Legal work of a preparatory nature such as that performed by a law clerk, is permitted.]
- In the state law, like CA, “includ[ing] legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured.”
For a California disbarred attorney, the rules permit legal work of a preparatory nature such as prepare pleadings and briefs, legal research, and draft discovery.
CA Rule for disbarred attorney at depo: Under the California rule, the disbarred attorney may only accompany an attorney to a deposition for the limited purpose of providing clerical assistance.
Lawyer can’t with non-lawyers**
A lawyer may not with non-lawyer:
a) split fees with a non-lawyer,
b) pay “referral” fees to a non-lawyer or
c) engage in the practice of law or sharing of legal income with a non-lawyer
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Non-lawyer
a) a disbarred former lawyer
b) a non-lawyer who becomes a joint client after referring the other joint client.
Employment of Disbarred Attorneys
The ABA model rules do not specifically discuss hiring a disbarred attorney. A disbarred attorney no longer has a license to practice law. Therefore, care must be taken to avoid aiding in the unauthorized practice of law.
The practice of law includes those things requiring exercise of professional judgment, and is defined specifically in state law, but “includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured.”
California rules, however, explicitly permit employment of a disbarred attorney so long as he is limited to tasks that would not constitute the practice of law. [Specific restrictions will be discussed below in reference to the specific activities in which [disbarred person] was engaged.] The rule further requires, however, that the firm serve written notice on both the State Bar and the client whom the disbarred individual will work outlining the specific tasks in which the disbarred individual be engaged. The firm must retain written proof of service of this notice on the client for two year.
Lawyer may not employe a disbarred attorney
not stated rule
Lawyer may not employe a disbarred attorney to:
a) Render legal advice to a client,
b) Negotiate for a client,
c) Appear in a court or other hearing,
d) Represent a client in a discovery matter,
e) handle client funds, or
f) engage in the practice of law
g) negotiating with third parties on behalf of a client or handling a client’s funds [CA]
CA DOES allow lawyer to employ disbarred attorney to:
a) To do legal work that is preparatory (such as legal research, prepare pleadings and briefs and draft discovery)
b) Communicate regarding scheduling, billing, and receipt of messages, and
c) Attend depositions to provide clerical assistance to the lawyer actively conducting the deposition
Requirement of notice of disabarred attorney
If an attorney does employ a disbarred attorney, the attorney must serve written notice of such employment, prior to or at the time of employing the disbarred attorney, on the State Bar and on every client on whose matters the disbarred attorney will be working (including proof of service of the written notice).
Duty of Fair Representation
This involves the manner of representing clients, and includes a number of litigation conduct issues. These include:
1. a lawyer may not improperly contact a juror or the judge;
2. restrictions on trial publicity that a lawyer knows or should know will substantially prejudice an adjudicative proceeding;
3. the duty of candor to the tribunal; and
4. fairness to opposing counsel and parties.
California law specifically makes it a cause for discipline for an attorney to report, or threaten to report, the suspected immigration status of a witness or party to the proceeding (or family member of the witness or party) because the individual has exercised a right to employment or rental of housing.
Duty to Fairness
An attorney has a duty of fairness to the opposing party to act in good faith. A lawyer should not engage in certain actions if it is known to be for the purpose of harassing or making a task unduly burdensome for opposing counsel/adverse party
Rule regarding Improprieties involving evidence and presentation of a case
**A lawyer may not:
1. unlawfully obstruct another party’s access to evidence, or alter, spoliate or otherwise destroy evidence or counsel another to do so;
2. falsify evidence or counsel another to do so;
3. knowingly disobey an obligation under the Rules of the court;
4. make frivolous discovery requests or
5. frivolous objections to valid discovery requests;
6. fail to notify opposing counsel of a document sent inadvertently—
a) ABA rules only require notice, leaving it to the substantive law of the state whether to require return.
b) California rules require notice and prohibit further examination of the document);
7. allude to any matter in trial that will not be supported by admissible evidence—goes to opening statements and closing arguments and their use of “facts” if not introduced or proven, or
8. assert personal knowledge of facts or a personal opinion as to the facts, credibility, or justice of a case—also goes to closing arguments;
9. deceive the court, opposing counsel, or an opposing party by making false statements or misleading statements or failing to disclose a material fact when disclosure is necessary to prevent a fraudulent or criminal act;
10. CA also prohibits pleadings without probable cause for injurious purposes;
11. A lawyer who receives incriminating evidence of a crime must turn it over to the proper authorities without disclosing the source—this DOES NOT violate the duty of confidentiality.
13. Lawyer shall not counsel client to engage, or assist a client in conduct that the lawyer knows is criminal, fraudulent, or a violation of law or rule – CA only
Must Contact Opposing Party’s Attorney
Both California and ABA rules prohibit direct contact with a party represented by counsel without counsel’s consent. [When the opposing party is an organization, the “represented party” includes any individual within the organization that directs the attorney or whose statements could be attributed to the organization for purposes of establishing criminal or civil liability. Moreover, as a general matter, an organization cannot represent itself in court, but must appear through an attorney.]
Mistreatment of Opposing Party
In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
California has no equivalent. Instead, it forbids a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute. This constitute the crime of extortion, which could violate a duty to the public under the ABA Rules.
Lawyer’s conduct of practice and Protected Class
ABA only
A lawyer shall not engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.
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Note:
o Does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16 (??)
o Does not preclude legitimate advice or advocacy consistent with these Rules (ABA)
Criminal Defendants who Testify Falsely
Lawyer must allow the defendant to testify even if the lawyer reasonably believes that the testimony will be false. Under ABA, the lawyer must disclose information to the tribunal to set the matter straight, even if the information is privileged or confidential. The lawyer would disclose in exchange of permissive withdrawal.
In California, the Lawyer may not disclose privileged or confidential information to the tribunal to set the matter straight. Instead, a California lawyer is presented with a criminal defendant who insists on offering testimony the lawyer knows is false, lawyer must try to persuade the defendant not to testify falsely. If that fails, the lawyer may call the defendant as a witness and question him up to the point at which the lawyer knows the defendant will testify falsely. Lawyer may not use any false testimony in his closing argument.
Because a criminal defendant has a constitutional right to testify, a lawyer must allow the defendant to testify even if the lawyer reasonably believes that the testimony will be false. However, if the lawyer knows that the defendant’s testimony will be false, the lawyer must try to convince the defendant not to testify falsely.
Contact with Represented Party / Treatment of Opposing Parties
In the representation of a client, a lawyer must not communicate about the matter with a person he knows to be represented by counsel in the matter unless the person’s counsel has granted permission or he is otherwise authorized by law or court order to make the direct communication. This rule applies even if the represented person initiated the communication or consented to it.
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Lawyer must not communicate about the matter with a person he knows to be represented by counsel in the matter unless:
1. Person’s counsel has granted permission, OR
2. He is otherwise authorized by law or court order to make the direct communication
Contact with Represented Organization as Party
Lawyer must get the consent of the organization’s counsel before communicating with a constituent of the organization:
1. Who supervises or regularly consults with the organization’s lawyer about the matter,
2. Who has authority to obligate the organization with respect to the matter, or
3. Whose conduct in the matter may be imputed to the organization for purposes of civil or criminal liability
Duties of a Public Prosecutor
ABA Model Rule+CAL RPC
- Refrain from prosecuting a charge P knows is not supported by probable cause;
- Make reasonable efforts to ensure that Defendant has been advised of the right to counsel;
- Not seek to obtain from an unrepresented Defendant a waiver of trial rights;
- Make timely disclosure of exculpatory evidence and mitigating circumstances;
- Promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense;
- Exercise reasonable care to prevent subordinates (including investigators and police) from making statements that the prosecutor is prohibited from making
- Prevent investigators and others from pretrial publicity that the prosecutor would be barred from making;
- Refrain from making extrajudicial public statements that have a substantial likelihood of heightening public condemnation of the accused except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and serve a legitimate law enforcement purpose, and exercise reasonable care to prevent investigators and other law enforcement personnel from engaging in such extrajudicial statements;
- **Refrain from subpoenaing an attorney in a criminal proceeding **unless the prosecutor reasonably believes that the information is not protected by privilege, the evidence is essential to an ongoing investigation or prosecution, and there is no feasible alternative (no similar CA RPC); and
- Seek to remedy a conviction when the prosecutor knows of clear and convincing evidence that a defendant did not commit the offense
Duties of a Public Prosecutor
Additional duty under CAL
- Prosecutor shall “make timely disclosure to the defense of all evidence or information known to the prosecutor that the prosecutor knows or reasonably should know tends to negate the guilt of the accused, mitigate the offense, or mitigate the sentence.”
- Exculpatory evidence includes impeachment evidence.
Duty to the Public - reporting other lawyers
ABA
The commission by a lawyer of fraud, a crime, or other serious immoral act is independently a breach of the duty to the public.
Under ABA, a lawyer must report rule violations by other attorneys: this includes a violation of the RPC that raises a substantial question as to that lawyer’s honesty or fitness as a lawyer in other respects must inform the appropriate professional authority. This rule does not require disclosure of privileged or confidential information.
Note:
where an attorney is convicted of a crime involving moral turpitude, the attorney is placed on interim suspension until the conviction becomes final, at which point final disposition of the attorney’s licensure is determined.
Duty to Public - Report other Attorneys
CA RPC
CA provides that California lawyers must report another lawyer “when the lawyer knows of 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.
This rule does not apply to a lawyer:
○ who is consulted about or retained to represent a lawyer whose conduct is in question, or
○ consulted in a professional capacity by another lawyer on whether the inquiring lawyer has a duty to report a third-party lawyer under this rule, or
○ received a report that diclosed information while participating as a member of a state or local bar association ethics hotline or similar service.
The term “substantial question” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.
In addition to reporting as required by paragraph (a), a report may also be made to another appropriate agency. A lawyer must not threaten to present criminal, administrative or disciplinary charges to obtain an advantage in a civil dispute in violation of rule 3.10.
A lawyer may also be disciplined for participating in an agreement that precludes the reporting of a violation of the rules.
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CA has no ethics rule that requires an attorney to report another attorney. Instead, CA lawyers are required to report themselves to the State Bar for:
a) Sued for malpractice three times in 12 months;
b) Found civilly liable for fraud, breach of fiduciary duty, or the like;
c) Sanctioned more than $1,000 (except for discovery sanctions);
d) Charged with a felony;
e) Convicted of certain serious crimes; or
f) Disciplined in another jurisdiction.
Duty to Withdraw
The duty to withdraw involves both mandatory withdrawal and permissive withdrawal. Whether withdrawal is mandatory or permissive, upon withdrawal, a lawyer has certain duties upon representation. When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good cause for terminating the representation. Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, including allowing client time to employ other counsel, returning any unearned fees and surrounding client’s papers or property and continuing to uphold his duty of confidentilaity to client.
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Under both California and ABA rules, the attorney seeking to withdraw must follow the rules of the tribunal, in applicable, and must take steps to protect the client’s interest.
Mandatory Withdrawal
rule 1
Withdrawal is mandatory or representation must be declined if: (i) the representation will result in violation of the RPC or other law, (ii) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, or (iii) the lawyer is discharged.
Mandatory withdrawal
rule 2: crime or fraud
An attorney must withdraw from a case when she learns of conduct that will constitute a crime or fraud that will necessarily involve the lawyer’s services. If it will not involve the lawyer’s services, the attorney may but does not need to withdraw.
Permissive withdrawal
ABA + Cal
- The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
- The client has used the lawyer’s services to perpetrate a crime or fraud;
- The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
- Other good cause for withdrawal exist
Permissive Withdrawal
Rule
CA allows permissive withdrawal in certain circumstances, including when the client knowingly and freely agrees to the termination of employment. ABA similarly allow permissive withdrawal in certain circumstances, including where it can be accomplished without material adverse effect on the client’s interests. Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, including allowing client time to employ other counsel, returning any unearned fees and surrounding client’s papers or property and continuing to uphold his duty of confidentilaity to client.
Permissive withdrawal
ABA only
- Withdrawal can be accomplished without material adverse effect on the interests of client;
- The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
- The representation will result in an unreasonable financial burden on the lawyer
Permissive withdrawal
Cal RPC
- Insists on presenting claim or defense not warranted;
- Insists attorney engage in conduct contrary to attorney advice
- Continuation of representation will result in violation of law or RPC
- Makes it unreasonable difficult
Withdrawal b/c Client commit fraud
ABA v. CA
ABA
* If attorney’s work has been used by the client to commit a fraud, the attorney:
o must withdraw from the representation, and
o may be required to give notice of the withdrawal to others (noisy withdrawal)
CA
* such action by the client is grounds for permissive withdrawal
* no noisy withdrawal
Attorney Advising Client in Crime and Fraud
Under the ABA rules, an attorney may not counsel a client to engage in conduct the attorney knows is criminal or fraudulent. CA RPC prohibits advising a client to engage in conduct that is criminal or a violation of any ruling of a tribunal.
Attorney Using Legal Process as Threat
In ABA and CA, a lawyer must not threaten to bring disciplinary proceedings for the purpose of gaining an advantage in a civil dispute. CA specifically prohibit to file “criminal, admisntrative, or disciplinary charges” to gain advantage in negotiations and lawsuit.
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Under the ABA rules, it is cause for discipline for an attorney to engage in conduct prejudicial to the administration of justice. California’s rules specifically prohibit the threat to file “criminal, administrative, or disciplinary charges” to gain advantage in negotiations.
Failure to Report Ethical Violation
ABA Rule
Under the ABA, a lawyer who knows that another lawyer has violated the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority. California does not require lawyers to report violations by other lawyers.
Attorney make false statement of material fact
ABA only/subrule using legal process as threat
Under the ABA rules, it is a violation for an attorney to make a false statement of material fact in the course of representing a client.
File frivolous lawsuit with no basis
Under the ABA rules, an attorney may not bring an action unless it has a basis in law and fact. Nonetheless, there is a high bar for violation of the ABA rule. It must be shown that the action is frivolous. The rule specifically permits the filing of claims in the face of contrary legal authority so long as there is a good faith argument for overturning that authority.
The California rules are similar but add that a filing of a pleading “without probable cause” that is filed for the purpose of harassment or maliciously injuring someone is also a violation.
Scope of Decision-Making
While the client has the right to state which claims he or she wishes to pursue and make major decisions regarding settlement or whether to plea, etc., it is within the attorney’s scope of authority to determine the proper strategy for effectuating these goals.
Duty of Candor/Honesty
A lawyer owes a duty of candor to opposing counsel, adverse parties, and the court. A lawyer must not submit evidence that she knows to be false or make a false statement of fact or law that she knows to be untrue. If she makes such a statement without knowing it is false and later learns of its true nature, the lawyer has a duty to correct the evidence or testimony. An attorney can breach his or her ethical duties by failing to speak when she has a duty to counsel her client against illegal or fraudulent activity and advise him that he or she cannot be a part of such conduct.
violating this duty or commit fraud or crime –> withdrawal
Duty to Diligently Pursue Completion of the Case
An attorney has a duty to diligently pursue a case to completion without allowing it to languish in the court system.
Accepting Compensation from Third Parties
Under the ABA, a lawyer must not accept compensations for representing a client from someone other than the client unless: 1) the client gives informed consent; 2) there is no interference with the lawyer’s independent professional judgment or with the lawyer-client relationship; and 3) information relating to the representation of a client remains confidential. California requires written informed consent.
Compensating Witness
Rule
ABA and CA forbid a lawyer from offering an inducement to any witness contingent upon the content of the witness’s testimony or the outcome of the case. An ordinary witness may be compensated for expenses incurred and loss of time in attending and testifying, and an expert witness may be paid a reasonable fee for testifying.
Acquiring an interest in litigation
Under ABA, a lawyer cannot acquire a proprietary interest in the cause of action or subject matter of litigation that the lawyer is conducting for a client [until the case is over]. The lawyer may, however, may acquire a lien authorized by law to secure the lawyer’s fee or expenses; and contract with a client for a reasonable contingent fee in a civil case.
There is no counterpart in CA. Instead, a lawyer is prohibited from obtaining any financial interest that would be adverse to the client, without the client’s informed written consent.
CA rule re: bad acts in and outside the law
A lawyer would be disbar or suspended if the lawyer engages in any act of moral turpitude, dishonest, or corruption, whether in the course of practicing law or otherwise.
Sales of Law Practice
All or substantially all of a law practice can be sold, including goodwill, regardless of whether the lawyer is alive or dead, provided that a number of conditions are met:
a) fees charged to clients cannot be increased solely by reason of the sale; and
b) if the sale contemplates the transfer of responsibility for work not yet completed or for client files, then all clients must receive written notice stating that:
(1) the interest in the law practice is being transferred to the purchaser;
(2) the clients have the right to retain their own counsel;
(3) the clients may take possession of their materials and property;
(4) if no response is received from a client within 90 days, or if the client’s rights would be prejudiced by a failure to act, then the purchaser may act on behalf of the client until otherwise notified by the client.
CA allows the sale of substantially all of the practice but ABA requires the entire practice to be sold and requires the seller to, at least, to cease practicing the type of law that has been sold,in that geographic territory
Managers and Supervisors of law firm
A lawyer is responsible for another lawyer’s violation of the Rules if:
(1) the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer has managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.
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manager
A lawyer with managerial authority in a law firm must make reasonable efforts to ensure that the firm has in place measures giving reasonable assurance that all lawyers in the firm comply with the Rules.
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Manager – liable for over everyone in the law firm
Supervisor
If a lawyer has direct supervisory authority over another lawyer the supervising lawyer must make reasonable efforts to ensure that the other lawyer conforms to the Rules.
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Supervisor – liable to those under its supervision
Subordiante / Associate Lawyer
Lawyers are bound by the Rules even when acting at the direction of another. However, subordinate lawyers do not violate the Rules if they act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Supervising over Nonlawyer
A lawyer having direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
