Professional Responsibility

Question 1

Duty of Loyalty (PR)

Answer 1

a lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of the client above all other interests and to avoid any conflicts of interest.

Question 2

Concurrent Conflict of Interest

Answer 2

Exists if the representation of one client is directly adverse to another client or if there is a significant risk that the representation of one or more client will be limited by the lawyer’s responsibilities to another client, former client or third party or personal interests of the lawyer.

Question 3

ABA Concurrent Conflict of Interests Exceptions

Answer 3

1. lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation
2. representation is not prohibited by law
3. each client gives informed written consent.

Question 4

CA Concurrent Conflict of Interest Exceptions

Answer 4

1. informed written consent

2. Written Disclosure if personal conflict btwn client and lawyer

Question 5

Business Transactions with Client

Answer 5

1. Terms are fair
2. Terms are fully disclosed in writing
3. the client is advised in writing to seek independent counsel
4. the client gives informed consent

Question 6

ABA Rule Solicitation gifts

Answer 6

A lawyer shall not solicit any substantial gift from a client or prepare an instrument that gives the lawyer a gift unless the lawyer is related to the client.

Question 7

CA Rule Solicitation gifts

Answer 7

A lawyer may accept a gift if it is fair and there is no undue influence

Question 8

ABA Rule on Advances to Clients

Answer 8

A lawyer shall not provide financial assistance to a client in connection with litigation, with the exception of contingency cases or indigent clients

Question 9

CA Rule on Advances to Clients

Answer 9

A lawyer may lend money to the client after employment if the client promises in writing to repay the loan.

Question 10

Compensation from Third Parties

Answer 10

Okay if:

1. client gives informed consent
2. there is no interference with the lawyer’s independent professional judgment or lawyer client relationship and
3. confidentiality is not breached

Question 11

Imputed Disqualification

Answer 11

occurs when any conflict of interest exists for an attorney, which results in all attorneys in his firm being disqualified from representing the client since all attorneys share the conflict.

Question 12

Exceptions to Imputed Disqualification

Answer 12

1. The prohibition is based on a personal interest and does not present a significant risk for other attorney’s representation
2. the lawyer with the conflicts is screened
3. the client waives the conflict with informed written consent.

Question 13

Duty to Communicate

Answer 13

the lawyer shall promptly inform the client of any decision that affects the client’s informed consent as well as reasonably consult and keep the client informed of the case.

Question 14

Duty of Confidentiality

Answer 14

A lawyer shall not reveal information relating to the representation of a client

Question 15

Exceptions to Duty of Confidentiality

Answer 15

1. Consent
2. prevent reasonably certain death or substantial bodily harm
3. prevent the client from committing a crime or fraud that is reasonably certain to result in substantial financial injury to the interest or property of another or use the lawyer’s services to do so or
4. Mitigate or rectify substantial injury to financial interest or property of another.

Question 16

Attorney Client Privilege

Answer 16

A client has a right not to have disclosed any confidential information between the attorney and the client relating to the professional relationship

Question 17

Reasonable Fee Factors

Answer 17

1. Time Limitations
2. Experience
3. Nature
4. Time and Labor
5. Fee Customarily Charged
6. Likelihood that acceptance would preclude other employment
7. Amount involved and results obtained
8. Whether the fee is fixed or contingent

Question 18

Fee Agreement Requirements

Answer 18

1. How the fee is calculated
2. the general nature of the legal services; and
3. the responsibilities of the lawyer and the client

Question 19

Contingency fee Agreement Requirements

Answer 19

1. Be in writing
2. Be signed by client (CA Rules by client & attorney)
3. State Method in which fee will be determined (percentages)
4. State the expenses to be deducted from the recovery and if before or after fees,
5. CA requires statement that fee is negotiable

Question 20

Fee Splitting with Attorneys (ABA)

Answer 20

May be done if:

1. the division is proportionate to the services performed
2. the client agrees
3. the total fee is reasonable

Question 21

Fee Splitting with Attorneys (CA)

Answer 21

allowable if client consents in writing after full disclosure and the total fee is not unconscionable

Question 22

Duty of Competence

Answer 22

a lawyer shall represent the client with the legal knowledge, skill, thoroughness and preparation reasonably necessary

Question 23

Duty of Diligence

Answer 23

A lawyer shall act with reasonable diligence and promptness in representing a client

Question 24

Safekeeping of property

Answer 24

a lawyer shall hold property of clients or third parties connected with the representation separate from the lawyer’s own property and must keep accounting records for 5 years.

Question 25

Sexual Relations with Clients (ABA Rule)

Answer 25

A lawyer shall not have sexual relations with a client unless it existed before the lawyer-client relationship

Question 26

Sexual Relations with Clients (CA Rule)

Answer 26

Allowable as long as the lawyer does not:

1. Require or demand sexual relations as a condition of representation;
2. Coerce, intimiate or exert undue influence or
3. cause the lawyer to perform incompetently

Question 27

Mandatory Withdraw

Answer 27

a lawyer shall withdraw from representation if

1. the representation will result in a violation of the rules of professional conduct or other law;
2. the lawyer’s mental or physical condition materially impairs the lawyer’s ability to represent a client or
3. the lawyer is discharged (ABA rule)

Question 28

Duty to client upon permissive withdrawal

Answer 28

1. provide the client with reasonable notice to allow time to seek other counsel;
2. surrender papers and property and
3. Refund any advanced payments not yet earned

Question 29

Advertising

Answer 29

a lawyer may advertise in any media unless the prospective client has made it known to the lawyer of his desire not to be solicited.

Question 30

Advertising Requirements

Answer 30

Must:

1. contain the name and office address of at least one lawyer responsible for the content;
2. be labeled “advertising material” (CA does not require exact wording)

Question 31

Targeted Direct-Mail Solicitations

Answer 31

Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal problem.

Question 32

Duty of Fairness

Answer 32

A lawyer has a general duty of fairness to third parties, opposing counsels and the court.

Question 33

Extrajudicial statements

Answer 33

A lawyer who is participating in an investigation or litigation or a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will publicly disseminate and have substantial likelihood of materially prejudicing the proceeding.