Professional Responsibility

Question 1

*Formation of Atty-Client Relationship

Answer 1

A lawyer-client relationship is formed when a person seeks legal services from a lawyer and the lawyer either manifests consent or fails to manifest lack of consent, and knows or should know the client reasonably relies on their services. IN CA -it is the “reasonable perception” of a purported client that determines if a person is a client.

Question 2

*Formation of Attorney-Client Relationship

WHEN ORGANIZATION is the CLIENT

Answer 2

A lawyer representing an organization represents organization as an entity acting through its duly authorized constituents (directors, officers, employees, owners). Lawyer doesn’t represent individual employees and must act best interest of the organization. Lawyer must explain the identity of the client when dealing with constituents that have adverse interests to the organization. Lawyer may also represent the officers, directors, or managers of the organization individually, but must abide by applicable conflict of interest rules including informed consent.NOTE - This would implicate the DUTY OF CONFIDENTIALITY and FORMATION OF an ATTORNEY-CLIENT RELATIONSHIP.

Question 3

Client-Attorney Relationship

Answer 3

When a lawyer discovers a client expects assistance that would violate a law or an ethical rule, the lawyer must explain whey she cannot do as the client instructs. If the client insists on the lawyer’s assistance in violating the law or an ethics rule, the lawyer must withdraw.

Question 4

*Allocation of Scope of Authority

Answer 4

ABA and CA - The client controls the objectives of representation, and the lawyer controls the legal and tactical means of achieving those objectives. Lawyer may limit scope of representation (1) if reasonable under the circumstances; and (2) client gives informed consent.

Question 5

*Duty of Loyalty

Answer 5

“Under both ABA and CA rules, a lawyer owes his client the fiduciary duty of loyalty, which means that he must act in the client’s best interest, avoid conflicts and not place his own interests or those of a third party above the interests’ of his client.” If representing clients with competing interests, an attorney must advise the parties and seek independent counsel. L also not allowed to engage in self-dealing OR act in his own interest.

(NOTE- should be analyzed with CONFLICT OF INTEREST). (NOTE- if a conflict exists, also analyze DUTY TO COMMUNICATE because L must advise of any issue requiring Informed Consent.

Question 6

*Duty of COMPETENCE

Answer 6

Under ABA and CA law, an attorney must act with the care, skill, preparation, thoroughness and diligence of a reasonable attorney under the circumstances. If the lawyer is not competent to handle the representation, s/he may: (1) decline or withdraw from the representation; (2) take action to become competent; (3) associate with competent counsel. Additionally, in CA, a lawyer is only subject to discipline if he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.

NOTE: May need to analyze with “Sixth Amendment - Ineffective Counsel”

Question 7

*POTENTIAL Conflicts of Interest

Answer 7

A potential COI exists when the Lawyer suspects a concurrent conflict may exist, but the representation has not yet been material limited. Under ABA, potential conflicts don’t require informed written consent. In CA, without informed written consent of EACH client, a lawyer may not represent more than one client in a matter in which the client’s interest potentially conflict.

Question 8

*Conflicts of Interest - CURRENT CLIENTS
and Exceptions that will allow the conflict

Answer 8

Under ABA and California laws, a lawyer must not represent a client if the representation is (1) directly adverse to another client, or (2) materially limited by responsibilities to another client, a former client, a third party, or the lawyer’s own interests, UNLESS (a) the lawyer reasonably believes s/he will be able to provide competent and diligent representation to each affected client, (b) the representation is not prohibited by law, (c) the representation does not involve the assertion of a claim by one client against another client represented by the same lawyer, and (d) each client gives informed consent in writing. California law is similar but does not have the “reasonably believes” requirement. (NOTE- This should be analyzed with DUTY OF LOYALTY and DUTY TO COMMUNICATE (b/c must communicate that L needs Informed Consent)

Question 9

*Conflicts of Interest - FORMER CLIENTS of the Lawyer

Answer 9

Unless a former client gives informed consent, a Lawyer CANNOT represent another person in the same or a substantially related matter when the person’s interests’ are materially adverse to the interest of the former client.

Question 10

*Business Transactions with Current Client

Answer 10

A business transaction between a lawyer and current client is only permitted if: (1) all terms are FAIR AND REASONABLE to the client; (2) the terms are FULLY DISCLOSED in writing; (3) the client is advised to consult with OUTSIDE COUNSEL and is given reasonable opportunity to do so; and (4) the client CONSENTS IN WRITING.

Question 11

*Permissive Withdrawal (Separate breakdown for ABA and CA)

Answer 11

Under ABA, a lawyer may seek withdrawal if it can be done without materially harming the client.

If it will harm the client, the lawyer may only withdraw if:

(1) client persists in a crime or fraud;

(2) lawyer learns previous services of the lawyer have been used to perpetrate a crime;

(3) lawyer finds clients course of action repugnant or lawyer has fundamental disagreement;

(4) client fails to pay lawyer’s fees, and has been given reasonable warning the lawyer will withdraw, unless the obligation is met;

(5) representation will result in an unreasonable financial burden on the lawyer;

(6) client has made representation unreasonably difficult, and

(7) other good cause exists.

Question 12

When Mandatory Withdrawal is required:

Answer 12

A lawyer MUST withdraw from representing a client if:

(a) Discharged;

(b) a physical or mental condition of the lawyer exists that (ABA = materially impairs the representation; CA = unreasonably difficult to effectively carry out the representation); OR

(c) the representation will result in a violation of an ethics rule or other law.

In CA, a lawyer MUST also withdraw if he knows or should know that the client is bringing an action:

(1) without probable cause,

(2) for the purpose of harassing or maliciously injuring a person.

Under both ABA and CA, proper withdrawal requires the lawyer to:

(1) provide timely notice to the client;

(2) promptly return any unspent legal fees, advanced expenses, and all of the client’s papers and property; AND

(3) obtain the court’s approval to withdraw if a lawsuit has already been filed.

Question 13

*CA Mandatory Withdrawal

Answer 13

A lawyer MUST WITHDRAW if he knows or should know that a client is bringing an action without PROBABLE CAUSE, for the purpose of harassing or maliciously injuring a person.

Question 14

*DUTY OF COMMUNICATION

Answer 14

Under ABA and California law, a Lawyer must: (1) keep the client reasonably informed on status of the legal matter; (2) Promptly comply with requests’ for info; (3) consult with client on strategy & on matters requiring client consent; (4) Promptly inform client of any issue requiring informed consent; (5) advise client when Lawyer knows client expects assistance not permitted by ethical rules.

Question 15

*DUTY OF DILIGENCE

Answer 15

Under ABA Model Rules and California law, lawyers shall act with reasonable diligence and promptness in representing a client. A lawyer’s workload must be controlled so that each matter can be handled competently. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end. Additionally, in CA, lawyer cannot intentionally, repeatedly, recklessly or with gross negligence fail to act w/reasonable diligence in representation.

Question 16

*DUTY OF CONFIDENTIALITY

AND EXCEPTIONS

Answer 16

Under ABA Model Rules and California law, a lawyer must not reveal any information relating to the representation of a client.

EXCEPTIONS:

ABA -

(1) when client gives informed consent;

(2) ordered to by Court;

(3) needed to defend a malpractice action or recover legal fees;

(4) to Prevent certain death or substantial bodily injury; or

(5) prevent client from committing a crime or fraud that will result in substantial financial loss; OR

(6) to secure legal advice about lawyers compliance with ethics rules.

In CA, a lawyer MAY, but is NOT REQUIRED to disclose confidential info to PREVENT A CRIME that will likely result in DEATH OR SUBSTANTIAL BODILY INJURY, and also, has a duty to attempt to dissuade, as well as INFORM CLIENT that the attorney will INFORM AUTHORITIES.

Question 17

*DUTY OF CANDOR TO THE COURT

Answer 17

A lawyer cannot engage in conduct involving DISHONESTY or FRAUD. A lawyer cannot knowingly make a FALSE STATEMENT, fail to CORRECT a false statement, fail to DISCLOSE CONTROLLING LEGAL authority known to be adverse or offer EVIDENCE KNOWN TO BE FALSE.

In CA, a lawyer is required to employ only means consistent with THE TRUTH, and never seek to MISLEAD any judicial officer with FALSE STATEMENTS.

Question 18

DUTY OF CANDOR TO TRIBUNAL - USE OF FALSE EVIDENCE

(Baressays Rule)

Answer 18

ABA, L can’t knowingly (1) make false statement of material fact or law, or fail to correct; (2) fail to disclose controlling legal auth; (3) offer false evidence. In CA, the law requires a lawyer to employ only means consistent with the truth, and never seek to mislead. Also requires reasonable measures to correct false evidence, but does not allow for revealing info protected under duty of confidentiality (opposite of ABA).

Question 19

DUTY OF CANDOR - REMEDIAL MEASURES

Answer 19

If a lawyer knows of false testimony elicited from a client during a deposition, the lawyer must (1) take reasonable measures to remonstrate the client confidentially; (2) advise the client of the lawyer’s duty of candor and (3) seek the client’s assistance to correct. In CA, during a CRIMINAL TRIAL, the lawyer may allow the client to testify in the NARRATIVE without disclosing perjury

Question 20

*DUTY OF FAIRNESS TO ADVERSARIES

Answer 20

When a lawyer knows that a person is represented by counsel in a matter, the lawyer cannot speak to the person concerning the matter unless (1) the lawyer has permission from the person’s lawyer; (2) authorized by law or court order; or (3) It is a public official, board committee or body (CA ONLY).

Question 21

*Witness Perjury

Answer 21

A lawyer cannot call a witness that he knows will commit perjury. If the defendant in a criminal trial insists on testifying to false information, first, try to persuade them not to; second, attempt to withdraw, third, ABA - tell the court. In CA allow the defendant to testify in NARRATIVE fashion.

Question 22

*Frivolous Claims

Answer 22

A lawyer has a duty to investigate the CLAIMS, or DEFENSES filed on behalf of a client and CANNOT file FRIVOLOUS claims or defenses with the court.

Question 23

Conduct Involving Deceit, Dishonesty, Fraud or Misrepresentation

Answer 23

Under ABA rules, it is professional misconduct for a lawyer to engage in any of these activites.

Question 24

Reporting Professional Misconduct

Answer 24

A lawyer must report another lawyer or judge when the lawyer knows a lawyer/judge violated ethical rules that raises a substantial question regarding the honesty, trustworthiness or fitness of the subject lawyer. In CA, a lawyer is NOT REQUIRED to report known violations, but a lawyer must SELF-REPORT if (1) CHARGED with a FELONY; (2) CONVICTED of a serious CRIME; (3) found GUILTY of a crime committed in a PROFESSIONAL CAPACITY; (4) DISCIPLINED; (5) Sanctioned for $1,000 or more; (6) sued for MALPRACTICE; (7) a court judgment finds the lawyer grossly INCOMPETENT or willfully MISREPRESENTED a client.

Question 25

*FEE Agreements #1

Answer 25

A lawyer shall not charge or collect an unreasonable fee (in CA unconscionable or Illegal so as to shock the conscience).

Written fee agreements are advisable under the ABA rules, and mandatory in CA unless the fee is $1,000 or less, the work is ROUTINE, the client is a CORPORATION, or client WAIVES the requirement in WRITING. A lawyer shall not charge a contingency fee in a divorce, alminony or criminal case.

Question 26

*FEE Agreements #2 (Preferable way to describe Fee Agreement for CA)

Answer 26

Under ABA and CA, a contingent fee agreement must be in writing and state the method by which the fee is to be determined. In CA, where it is reasonably foreseeable the total expense to a client, including attorney fees, will exceed $1,000, the contract for services must be written and include: (1) basis of compensation, including hourly rates, statutory fees, and other rates, fees, and charges, (2) general nature of the legal services provided, and (3) contractual responsibilities of the lawyer and client.

Question 27

*Reasonable Fee

Answer 27

Under ABA rules, fees must be redasonable based on such factors as the time, difficulty of the case, and expertise of the lawyer, degree of specialty required, preclusion of his other work, amount of fee, the relationship with the client, and the results obtained.

Question 28

Retainers

Answer 28

Under ABA and CA, a lawyer may collect a fee in advance in the form of a retainer, but unless the advance payment is a true retainer to reserve services, the lawyer must return any unearned portion.

Question 29

*Contingency Fee Agreements

Answer 29

Under ABA and CA laws - a contingency fee agreement must be in writing, be signed by the client and state the method by which the fee is calculated, and state the expenses to be deducted from recovery, as well as whether they would be deducted before or after the fee calculation. Additionally, in CA – where it’s reasonably foreseeable the total expense to the client, including attorney fees will exceed $1,000, the agreement must include (1) basis of compensation, including hourly rates, statutory fees and other charges (2) general nature of the legal services provided, and (3) lawyer and client contractual responsibilities.” Lastly, both the lawyer and client must sign the agreement and state that the fee is negotiable. (NOTE: Cases that involve Contingency Fees are an exception to rule prohibiting LAWYERS FROM HAVING A PROPRIATARY INTEREST IN THE CAUSE OF ACTION. So analyze that too.

A contingent fee requires the client to pay a fee only if there is a favorable outcome. Under ABA, contingent fees are not permitted in criminal cases or when a lawyer represents a defendant in a domestic relations case. CA does not prohibit contingent fee agreements in domestic or criminal matters, but a contingent fee agreement for services in bringing an action for dissolution of marriage is void as illegally encouraging divorce.” The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted. In CA, the writing must include how expenses not covered in the agreement will be charged, and that fees are not set by law and negotiable.

Question 30

Fee Sharing Between Lawyers

Answer 30

Under ABA and CA, Fees can be shared between lawyers not in the same firm if (1) the division is proportionate to the service provided; (2) the client consents in writing; (3) total fees are reasonable. In CA, in addition; (1) the fees cannot be increased because of the division; and (2) the fees aren’t unconscionable.

Question 31

*Sharing Fees with Non-Lawyers

Answer 31

Fees may not be shared, and a partnership may not be made with non-lawyers if any of their activities include the practice of law.

Question 32

Third Party Payments of FEES

Answer 32

Allowing a third party to pay for legal fees is permissible, as long as such agreement prohibits the third party from controlling the course of the representation. The third party has no privilege to be apprised of the case or of any confidential communication. Here, the client MUST give INFORMED CONSENT. In CA, this consent MUST be in writing.

Question 33

Lawyer Advancing Expenses

Answer 33

Under both ABA and CA rules, a lawyer may advance litigation expenses. The agremeent must be in writing and must state that the advance is a loan requiring repayment.

In CA, a lawyer is permitted to loan the client funds, but must have a written agreement and the loan cannot be used to entice the client to engage the lawyer’s services.

Question 34

Referrals

Answer 34

ABA- a lawyer may not give anything of vlaue to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients. In CA, referral fees can be paid if the client (1) consents in writing; (2) the fee does not increase cost to client; and 3) if not unconscionable.

Question 35

Gifts

Answer 35

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer is related to the client.

Question 36

*Solicitation

Answer 36

A Lawyer or his agent CANNOT solicit a person by in-person, live telephone, or real-time electronic contact for professional employment when a significant motive is for pecuniary gain UNLESS the person: (1) is a lawyer; (2) has a family, close personal, or prior business/prof relationship with the L or Law Firm; OR (3) for ABA, routinely uses the type of legal services offered for biz purposes. ABA also requires the envelope to state “Advertising Material.”CAL-lawyer needs to label as communication or solicitation / advertisements. Note that “REAL TIME ELECTRONIC COMM”doesn’t include email,textor other writings that can beeasily discarded.

Question 37

Assisting Non-Lawyers in the Unauthorized Practice of Law

Answer 37

A lawyer who assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules. In CA, a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney to engage in the practice of law, but can hire them to perform para-legal duties.

Question 38

Inadvertent Receipt of Documents

Answer 38

A lawyer who receives a documetn or electronicaly stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored informatio was inadvertently sent shall promptly notify the sender.

Question 39

Sexual Relations with Client

Answer 39

ABA= Under ABA, a lawyer may not have sexual relations with a client unless a consensual sexual relationship existed when the attorney-client relationship commenced.

In CA, a lawyer must not (1) require or demand sexual relations with a client incident to or as a condition of professional representation, (2) coerce, intimidate, or unduly influence a client into entering in sexual relations, or (3) continue representation of a client with whom the lawyer has sexual relations if such sexual relations cause the lawyer to perform legal services incompetently.

CA Sexual Relations Exceptions: California laws on sexual relations don’t apply to (1) sexual relations with a spouse, (2) consenting sexual relationship that predates the attorney-client relationship, OR (3) firm lawyer who has sexual relations with a client, but does not participate in representing the client.

Question 40

Attorney-Client Privilege

Answer 40

The attorney-client privilege prohibits a court or government tribunal from compelling the revelation of confidential communications between an attorney and a client if the subject of the communication concerns legal advice. In California, the attorney-client privilege terminates when the client’s estate is settled and the personal representative is discharged.

Question 41

Attorney Work Product Doctrine

Answer 41

All materials prepared by an atty or his agents in anticipation of or during litigation is immune from discovery unless the opposition shows (1) substantial need AND an (2) inability to obtain the material elsewhere without undue hardship. Lawyers mental impressions, notes or opinions are absolutely protected and not discoverable.

Question 42

Lawyer Acquiring Propriatary Interest in Cause of Action

Answer 42

Lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation unless it is to acquire a lien to secure L’s fees or to contract with a client for a reasonable contingency fee in a civil case. (NOTE: PI and other contingency cases are an exception to this, so ANALYZE as part of facts that use CONTINGENCY FEE)

Question 43

CONFLICT OF INTEREST with Former Client’s of Lawyer’s FIRM

Answer 43

Unless a former client gives informed consent (ABA informed consent, confirmed in writing), lawyer CANNOT represent a person in the same or a substantially related matter that the lawyer’s firm had previously represented a client: (1) whose interests are materially adverse to that person, AND (2) about whom the lawyer had acquired confidential information that is material to the matter.

Question 44

Conflict of Interest Imputed to Law Firm

Answer 44

COI is imputed to entire law firm, and they are all *disqualified* from representation. Exceptions: (1) conflict is purely personal and doesn’t materially limit the representation; OR (2) the lawyer is properly screened when (a) conflict arises out of association with Lawyer’s previous firm; (b) Lawyer is timely screened and doesn’t receive any of the fee; (c) written notice given to the former client; and (d) CA ONLY- Lawyer didn’t substantially participate in the matter at the prior firm.

Question 45

SIXTH AMENDMENT - INEFFECTIVE COUNSEL

Answer 45

The right to counsel encompasses the right to be assisted by a reasonably competent attorney. An attorney is ineffective when (1) representation falls below an objective reasonableness standard, and (2) the deficient performance prejudices the defendant, resulting in an unreliable or fundamentally unfair outcome in the proceeding.

ANALYZE ABOVE WITH “DUTY OF COMPETENCE”

Question 46

DUTY OF FAIRNESS TO OPPOSING COUNSEL (Providing Discovery)

Answer 46

Under ABA, a Lawyer shall not fail to make reasonable effort to comply with legally proper discovery request by opposing counsel. In CA, Lawyer shall not suppress evidence the Lawyer or client has legal obligation to reveal or produce.

Question 47

DUTY TO AVOID FRIVOLOUS CLAIMS

Answer 47

Under the ABA – a Lawyer may not bring or defend a proceeding, or assert, or controvert an issue unless there is basis in law or fact that isn’t Frivolous. An action is frivolous if the lawyer is unable to make good-faith argument for a modification, extension or reversal of exist law. In CA, lawyer can’t even accept, seek or continue employment if he knows or should know there’s no good-faith argument. CA law forbids a lawyer from maintaining or counseling an action, proceeding or defense that does not appear legal or just, except for the defense of a person charged with a public offense.

Question 48

SUBORDINATE LAWYER RESPONSIBILITIES

Answer 48

A lawyer shall comply with professional responsibility rules (RULES) notwithstanding the lawyer acts at the direction of another person. A subordinate lawyer does not violate the Rules if the subordinate acts in accordance with the Supervisory lawyer’s reasonable resolution of an arguable question of professional duty. In California, the subordinate must communicate professional judgment to the supervisor if s/he believes the supervisor’s proposed resolution violates the Rules.

Question 49

REPORTING MISCONDUCT

Answer 49

ABA requires a L who has knowledge of rule violation raising question as to L’s honesty, trustworthiness, or fitness to inform appropriate professional authority. CA has no requirement to report misconduct by another lawyer, but a Lawyer must self-report if (1) charged with felony; (2) convicted of a serious crime; (3) found guilty of a crime committed in professional capacity; (4) disciplined; (5) sanctioned for $1K or more; (6) sued for malpractice; or (7) court judgment finds the Lawyer grossly incompetent or willfully misrepresented a client.

Question 50

Unauthorized Practice of Law (no license)

Answer 50

A lawyer CANNOT practice law in a state/jurisdiction where that lawyer is not admitted to practice law. Additionally, lawyer CANNOT assist a person in the unauthorized practice of law. Practice of law means doing things that call for the professional judgment of a lawyer. A lawyer not admitted to practice in the state CANNOT: (1) have an office or systematic/continuous presence in such state for the practice of law; OR (2) hold out to the public that the lawyer is admitted to practice law in the state. In CA, certain exceptions to the above rules exist, including for: counsel pro hac vice, appearances by military counsel, certified law students, out-of-state attorney arbitration counsel program, registered foreign legal consultant, registered legal services lawyers, registered in-house counsel, lawyers practicing temporarily in California as part of litigation, and non-litigating lawyers temporarily in California to provide legal services.