Professional Responsibilities

Question 1

PR General Orangization

approach

Answer 1

1. by attorney’s act or event or incident, chronologically
2. Discuss in the subheadings the duties implicated by that event
3. Two IRACs:
   a) one under ABA rule and its application and
   b) one under CA rule and its application
4. 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

Question 2

letting others violate rule

Answer 2

The rules prohibits violating the rules through the actions of another.

Question 3

advertisement

Approach

Answer 3

1. General advertising
2. particular subjects
   a) advertising
   b) solicitation
   c) direct mail solicitations

Question 4

Advertising**

Duty of Truthful Advertising

Answer 4

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.

Question 5

Solicitation**

Duty of Truthful Advertising

Answer 5

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.”
—
a business card is a “communication” under the California rules.

Question 6

Solicit for Pro bono

Answer 6

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.

Question 7

Truthful Advertising**

CAL RPC/not stated

Answer 7

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

Question 8

Cal B&P Code lists of practices that are presumed false or misleading:

Answer 8

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.

Question 9

Direct Mail Solicitations

Answer 9

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

Question 10

Duty to Make Reasonable Fee Arrangements

Answer 10

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.

Question 11

Two main issues concerning Fees

not rules

Answer 11

1. Financial Assistance to clients and the concept of “buying” Clients through offers of gifts, loans, or similar devices/financial arrangements; and
2. Whether a fee is a Reasonable Fees

Question 12

Financial Assistance to Clients

ABA Model Rule

Answer 12

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

Question 13

Financial Assistance to Clients

CA RPC

Answer 13

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.
—-
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

Question 14

Reasonable Fees

Answer 14

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.

Question 15

Contingent Fees**

Answer 15

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.]

Question 16

Rule of Prohibiting Contingent Fee

Answer 16

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.

Question 17

CA Fee Agreement

Answer 17

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.

Question 18

CA Fee Agreement Requirements

Answer 18

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.

Question 19

Flat Fees

Answer 19

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.

Question 20

Fee Splitting with Non-lawyers

Answer 20

Under both ABA and CA rules, a lawyer MAY NOT split a fee with a non-lawyer.

Question 21

Fee Splitting with Lawyers

ABA Model Rule

Answer 21

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.
—-
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

Question 22

Fee Splitting with Lawyers

CA RPC

Answer 22

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.
—
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.
—
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

Question 23

Referral Fees – Voluntary Payment from Attorney to Referrer

Answer 23

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.

Question 24

Rule of Reciprocal Referral

Answer 24

Both ABA and RPC permit reciprocal referral agreements so long the client is informed and the agreement is not exclusive.

Question 25

Naked Referral Fees

CA

Answer 25

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.

Question 26

Prohibit Capper/Runner

Answer 26

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.

Question 27

Duty of Loyalty and Avoidance of Conflicts of Interests

Approach

Answer 27

1. Conflict of interest
2. Continued representation

Question 28

Duty of Loyalty - for Clients best interests

Answer 28

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.

Question 29

Duty of Loyalty and Avoidance of Conflicts of Interests

Answer 29

[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.

—
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.

Question 30

Disclosure for Potential Conflict

optional

Answer 30

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.

Question 31

Continued Representation for Joint Representation (concurrent conflict)**

Answer 31

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.

Question 32

Waiving the Conflict

ABA v. CA RPC

Answer 32

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

Question 33

When Written disclosure to Client is Required

CA

Answer 33

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.

—

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.

Question 34

Conflict of Interest

not stated rule yet

Answer 34

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.

Question 35

Types of Conflict

Answer 35

1. Concurrent conflicts
2. Conflict with current and former clients / clients of former firm
3. Conflicts representing organizations
4. Agreements limiting liability for malpractice
5. Imputed conflicts
6. financial interests and informed consent
7. aggregate settlements in multiple representations
8. insurance defense lawyer conflicts
9. sexual relations with the client
10. conflict rules involving government attorneys
11. purchasing property at foreclosure
12. solicitation of gifts
13. media rights
14. client property and records
15. improper use of confidential information or a client’s secrets;
16. being designated as a beneficiary of a gift, estate, or trust;
17. financial assistance to the client
18. 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);

Question 36

Prompt Disclosure for Legal Malpractice Claim

CA RPC only

Answer 36

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

Question 37

Conflict also Required Informed written consent

Answer 37

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.

Question 38

Conflict in California

Tip

Answer 38

(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

Question 39

Conflict of interest - concurrent conflict**

2014 Q3 bar answer

Answer 39

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.

Question 40

Duty of Loyalty to Former Clients

Answer 40

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.

Question 41

Duty of Loyalty to Client from Former Firm

Answer 41

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.

Question 42

Duty of Loyalty to Organizations**

Guide

Answer 42

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.

Question 43

Conflict from Agreement that Limits Malpractice

Answer 43

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.

Question 44

Prospective limit on liability

ABA v. CA RPC

Answer 44

A lawyer seeks to limit liability prospectively (1) allowed in ABA rules IF client is represented by independent counsel. In California, it is prohibited.
—
Note: Prohibited in CA (CA RPC 1.8.8)

Question 45

Imputed Conflicts

Answer 45

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.

Question 46

Definition of firm

not a stated rule

Answer 46

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.

Question 47

Imputed Conflicts Doesn’t Applied

List

Answer 47

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.

Question 48

Special Rules for Conflict Rules involving Government Attorneys -
Former government attorneys

Answer 48

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.
—
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.

Question 49

Former Govt Attorney - Conflict Not Imputed

Answer 49

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.

Question 50

Conflict is a purely personal interest.

Answer 50

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

Question 51

Conflict caused by close family relationship.

Answer 51

Conflicts caused by the conflicted lawyer’s close family relationship with another lawyer who is representing a different client in the matter

Question 52

Screening

Answer 52

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.

Question 53

Atty’s conflict with client’s Financial Interest

duty of loyalty

Answer 53

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.

Question 54

Financial Conflicts between Attorney and Client -
Financial Transaction and Informed Consent

Answer 54

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.

Question 55

Purchasing Property at Foreclosure

CA RPC

Answer 55

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.

Question 56

Solicitation of Gifts

Answer 56

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.
—
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

Question 57

Undue Influence for Atty drafting instrument

Answer 57

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.

Question 58

Media Rights

ABA Model Rules

Answer 58

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.
—
Express prohibition until after conclusion of representation

Question 59

Media Rights

CA RPC

Answer 59

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.
—
* Not simlilar to ABA
* Trial judge must ensure defendant understands the conflict

Question 60

Trial Publicity

Answer 60

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.

Question 61

Sexual Relations with the Clients**

Answer 61

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.
—
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

Question 62

Sexual Relations from Constituent Within Client Organization

Answer 62

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

Question 63

Aggregate Settlement

Answer 63

Under both the ABA and California rules, an attorney may not enter into an aggregate settlement without informed written consent of each client.

Question 64

Client Property and Records

Answer 64

1. A lawyer must hold property of clients or third persons separate from the lawyer’s own property.
2. Client funds must be kept in a client trust account.
3. 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.
4. 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.
5. The property must be immediately returned on request of the client, and cannot be held until client pays the bill.
6. Lawyer may not pay or promise to pay client funds to any person other than the client without the client’s consent.
7. In California, a lawyer must preserve records of client funds or other property for five years after the money or property is distributed.

Question 65

Trust Account Rules

Answer 65

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.

Question 66

Duty of Competence

Answer 66

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.
—
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

Question 67

Factor to Withdraw

Duty of Competence

Answer 67

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.

Question 68

Duty of Care**

Answer 68

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.
—
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.

Question 69

Duty of Communication**

Answer 69

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.
—
There is no rule prohibiting the use of an interpreter.

Question 70

Duty of Communication - Settlement and Plea Offers

Answer 70

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.

Question 71

Communication by Translation

Answer 71

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

Question 72

Disclosure of lack of professional liability insurance

CA only

Answer 72

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

Question 73

Scope of Representation

Answer 73

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.

Question 74

Duty of Confidentiality

list

Answer 74

Duty of confidentiality includes:
1. Attorney-client privilege
2. Attorney work-product privilege
3. confidentiality

Question 75

Attorney-client privilege – evidence issue

Answer 75

The attorney cannot be compelled in a proceeding to disclose confidential communications with the client—and the duty of confidentiality.
—
Issues concerning the privilege include its scope, duration, and exceptions

Question 76

Attorney work-product privilege

Answer 76

The duty to protect the attorney’s thoughts, impressions, and litigation preparation.
—
Lawyer’s thoughts and impressions

Question 77

Confidentiality

Short Rule**

Answer 77

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.

Question 78

Confidentiality
and ABA and CA exception

Long rule

Answer 78

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.

—
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.

Question 79

Confidentiality: disclosure and consent from multiple clients

Representing multiple client

Answer 79

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.

Question 80

Acting competently to Preserve Confidentiality

Answer 80

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.
—
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

Question 81

Scope of Privilege

Answer 81

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.

Question 82

Scope - Duration

Answer 82

Duration means that the privilege survives the termination of the relationship, and death of the client.

Question 83

3 Exceptions to Privilege

Answer 83

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.

Question 84

Breaching Confidentiality

Answer 84

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.

Question 85

Reporting Out

Answer 85

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??

Question 86

Sarbanes-Oxley

Answer 86

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.
—
Potential conflict with CA RPC if securities lawyer notifies SEC

Question 87

Who the securities lawyer should report to

Answer 87

1. Chief legal officer
2. Board of directors
3. Audit committee
4. Committee of outside directors
5. Law authorizes report to SEC

Question 88

Duty of CLO after receiving report

Answer 88

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.

Question 89

Security Lawyer Reporting Out

Federal Law

Answer 89

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.

Question 90

Security Lawyer Reporting Out

CA RPC

Answer 90

1. California’s RPC do not permit such a disclosure of confidential information to the SEC, or anyone else for that matter.
2. Thus, there is a potential conflict for a California lawyer between his options under Federal law and his duty under the California RPC.
3. 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.

Question 91

Duty to Profession - Unauthorized Practice of Law

Answer 91

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.

Question 92

Lawyer can’t with non-lawyers**

Answer 92

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
—
Non-lawyer
a) a disbarred former lawyer
b) a non-lawyer who becomes a joint client after referring the other joint client.

Question 93

Employment of Disbarred Attorneys

Answer 93

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.

Question 94

Lawyer may not employe a disbarred attorney

not stated rule

Answer 94

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

Question 95

Requirement of notice of disabarred attorney

Answer 95

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).

Question 96

Duty of Fair Representation

Answer 96

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.

Question 97

Duty to Fairness

Answer 97

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

Question 98

Rule regarding Improprieties involving evidence and presentation of a case

Answer 98

**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

Question 99

Must Contact Opposing Party’s Attorney

Answer 99

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.]

Question 100

Mistreatment of Opposing Party

Answer 100

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.

Question 101

Lawyer’s conduct of practice and Protected Class

ABA only

Answer 101

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.
—
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)

Question 102

Criminal Defendants who Testify Falsely

Answer 102

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.

Question 103

Contact with Represented Party / Treatment of Opposing Parties

Answer 103

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.
—
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

Question 104

Contact with Represented Organization as Party

Answer 104

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

Question 105

Duties of a Public Prosecutor

ABA Model Rule+CAL RPC

Answer 105

• 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

Question 106

Duties of a Public Prosecutor

Additional duty under CAL

Answer 106

• 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.

Question 107

Duty to the Public - reporting other lawyers

ABA

Answer 107

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.

Question 108

Duty to Public - Report other Attorneys

CA RPC

Answer 108

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.

—
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.

Question 109

Duty to Withdraw

Answer 109

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.
—
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.

Question 110

Mandatory Withdrawal

rule 1

Answer 110

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.

Question 111

Mandatory withdrawal

rule 2: crime or fraud

Answer 111

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.

Question 112

Permissive withdrawal

ABA + Cal

Answer 112

• 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

Question 113

Permissive Withdrawal

Rule

Answer 113

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.

Question 114

Permissive withdrawal

ABA only

Answer 114

• 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

Question 115

Permissive withdrawal

Cal RPC

Answer 115

• 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

Question 116

Withdrawal b/c Client commit fraud

ABA v. CA

Answer 116

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

Question 117

Attorney Advising Client in Crime and Fraud

Answer 117

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.

Question 118

Attorney Using Legal Process as Threat

Answer 118

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.

—
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.

Question 119

Failure to Report Ethical Violation

ABA Rule

Answer 119

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.

Question 120

Attorney make false statement of material fact

ABA only/subrule using legal process as threat

Answer 120

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.

Question 121

File frivolous lawsuit with no basis

Answer 121

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.

Question 122

Scope of Decision-Making

Answer 122

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.

Question 123

Duty of Candor/Honesty

Answer 123

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

Question 124

Duty to Diligently Pursue Completion of the Case

Answer 124

An attorney has a duty to diligently pursue a case to completion without allowing it to languish in the court system.

Question 125

Accepting Compensation from Third Parties

Answer 125

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.

Question 126

Compensating Witness

Rule

Answer 126

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.

Question 127

Acquiring an interest in litigation

Answer 127

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.

Question 128

CA rule re: bad acts in and outside the law

Answer 128

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.

Question 129

Sales of Law Practice

Answer 129

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

Question 130

Managers and Supervisors of law firm

Answer 130

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.
—

Question 131

manager

Answer 131

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.
–
Manager – liable for over everyone in the law firm

Question 132

Supervisor

Answer 132

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.

–
Supervisor – liable to those under its supervision

Question 133

Subordiante / Associate Lawyer

Answer 133

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.

Question 134

Supervising over Nonlawyer

Answer 134

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.