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CA Bar Exam- Ca Subjects > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

PR: Essay Approach

A

A lawyer owes a duty of ______ to _______.

Clients Love Fierce Counsel

Confidentiality, Loyalty, Finance, Competence

Court Feel Differently

Candor, Fairness, Dignity (Decorum)

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2
Q

PR: Duty of Competence

A

ALWAYS THROW IN

ABA: must render competent services, using legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

CA: recognizes mental, emotional, and physical ability and provides that lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonably competence.

May cure by:

1) learning without undue expense or delay to client; or
2) consult with a lawyer who is competent

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3
Q

PR: Duty of Diligence

A

Must be diligent and promptly pursue your case to completion.

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4
Q

PR: Duty of Confidentiality

A

A lawyer owes his client a duty not to reveal anything related to the representation of a client or use information that is not generally known to the clients disadvantage. Also, must prevent inadvertent disclose of confidential information.

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5
Q

PR: Exceptions to Duty of Confidentiality

A

Consent or Implied Authority
Prevent Death or Substantial Bodily Harm
Comply With Court Order

ABA
Prevent or Rectify Substantial Financial Loss
Defend Self or Establish Claim Against Client
Conflicts Check (may be implied authority)
Obtain Legal Ethics Advice

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6
Q

PR: Exception to Duty of Confidentiality-Death or Bodily Harm

A

Under the ABA a lawyer may reveal what is necessary to prevent an act that is reasonably certain to cause death or substantial bodily harm.

CA: Only applies to criminal acts.

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7
Q

PR: Exception to Duty of Confidentiality-Financial Crimes

A

A lawyer may disclose confidential information to prevent the client from committing crimes or fraud that will cause substantial financial harm if the client has used or is using your services to commit the crime and disclosure would prevent or mitigate substantial financial harm.

CA: NOT PERMITTED

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8
Q

PR: Attorney-Client Privilege

A

An attorney may not testify as to any communications with a client that pertain to legal services. Under ABA, continues until after client dies. Under, CA the privilege ends when client’s estate is settled and personal representative is discharged.

Exceptions

  • Services used to enable to commit future crime or fraud
  • Legal Services at issue
  • Formerly Joint Clients
  • Wills (competency or intention of client)

CA- if necessary to prevent a criminal act that lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death.

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9
Q

PR: Duty of Loyalty - General

A

A lawyer owes a duty to his clients to avoid conflicts of interest. A conflict of interest arises when representation is directly adverse to the client or if there is significant risk that representation will be materially limited by lawyer’s own interest or a duty owed to a another client (past or current) or third person.

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10
Q

PR: Duty of Loyalty - Direct Adversity

A

May be directly adverse even if unrelated matters, but mere economic adversity does not amount to a direct adversity.

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11
Q

PR: Duty of Loyalty - Significant Risk of Material Limitation Examples

A
  • Representation of Multiple Parties on Same Side
  • Former Client Conflict
  • Fiduciary Owed to Third Party.
  • Lawyer’s Own Financial or Personal Interest
  • Close Family Relations with Opposing Counsel
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12
Q

PR: Duty of Loyalty - California Required Written Disclosure

A

California requires a written disclosure to client when:

1) the lawyer has a prior legal, business, financial, professional, or personal relationship with a party or witness in the client’s matter
2) the lawyer is an immediate family member, lives with, is in an intimate relationship with, or is a client of another party’s attorney

even if relationship does not crate risk of material limitation.

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13
Q

PR: Duty of Loyalty - Informed Consent

A

Under the ABA, a lawyer may continue the representation, even if a conflict of interest exists, if

1) the lawyer reasonably believes that they can competently and diligently represent each client,
2) the representation does not involve one client asserting a claim against another client in the same proceeding,
3) the lawyer obtains informed consent, confirmed in writing, and
4) the representation is not prohibited by law.

Under California law, the informed consent of each party must be in writing.

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14
Q

PR: Duty of Loyalty-Proprietary Interest in Cause of Action

A

A lawyer must not acquire a proprietary interest in the cause of action of subject matter of litigation that lawyer is conducting for the client.

  • unless contingency
  • or lien on property for legal services as allowed by law.

No equivalent CA Rule (use business transaction rule)

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15
Q

PR: Duty of Loyalty - Business Transactions

A

First Discuss Over Coffee

A lawyer must not enter into a business transaction with a current clients:

Fair- terms must be fair to client

Disclosure- terms and lawyer’s role must be disclose to the client in writing

Outside Counsel- client should be advised that they should get independent counsel

Consent- client must give informed consent in a writing signed by the client.

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16
Q

PR: Duty of Loyalty- Settling Malpractice liability

A

Lawyer must not settle a claim or potential claim with unrepresented client or former client without:

1) advising client in writing that independent counsel is desirable AND
2) giving client a reasonable chance to consult with independent counsel

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17
Q

PR: Duty of Loyalty- Prospective Malpractice liability

A

A lawyer may limit prospective malpractice liability if client has independent representation.

CA: lawyer can cannot limit prospective malpractice liability

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18
Q

PR: Duty of Loyalty- Financial Assistance

A

Lawyer may not , except for indigent clients and advancing litigation expenses, or pro bono attorney may pay for basic living expenses.

CA: permitted for any purpose with written agreement.

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19
Q

PR: Duty of Loyalty- Substantial Gifts

A

Lawyer must not solicit a substantial gift from a client or prepare an instrument on behalf of the client giving a substantial gift to the lawyer (or the lawyer’s relative).

Does not apply if client is related to the recipient of the gift.

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20
Q

PR: Duty of Loyalty- Acquiring Literary or Media Rights

A

Lawyer must not acquire literary or media rights to a story based on current representation of client, but may acquire rights after the legal matter is entirely completed.

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21
Q

PR: Duty of Loyalty- Aggregate Settlement Agreement

A

If representing multiple client and settling, lawyer must:

1) disclose to each client existence and nature of all claims
2) each client must give informed consent in a signed writing

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22
Q

PR: Duty of Loyalty - Lawyer as Trial Witness?

A

Must not act as an advocate in a trial in which lawyer is likely to be a necessary witness unless

uncontested issue

testimony is regarding nature and value of legal services OR

ABA: withdrawal would cause substantial hardship

CA: client provides informed consent to dual role.

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23
Q

PR: Duty of Loyalty-Third Party Payments

A

A lawyer must not accept payment of legal fees from a third party unless there is informed consent, there is no interference with the law’s independence of professional judgment, and information about the representation of a client remains confidential.

24
Q

PR: Duty of Loyalty - Former Client

A

A lawyer owes a former client a duty not to represent a client whose interests are materially adverse to those of a former client in a matter that is the SAME OR SUBSTANTIALLY RELATED to matter in which lawyer represented former client unless former client provides informed consent, confirmed in writing.

25
Q

PR: Duty of Loyalty - Former govt officials

A

A lawyer who previous worked in as a government employee must not represent a private client in a matter in which the lawyer PERSONALLY and SUBSTANTIALLY participated in, unless the government agency gives informed consent, confirmed in writing.

26
Q

PR: Duty of Loyalty- Current Government Official

A

A current government official must not participate in a matter in which they PERSONALLY OR SUBSTANTIALLY participated in unless gov employer gives informed consent confirmed in writing.

27
Q

PR: Duty of Loyalty- Prospective Clients

A

A person who consults with a lawyer in good faith about the possibility of creating a lawyer-client is a prospective client.

A lawyer who obtains confidential information during consult owes the prospective client a duty not to later represent a client that is adverse to a prospective client in the SAME OR SUBSTANTIALLY RELATED MATTER unless both current and prospective client provide informed consent confirmed in writing.

Firm may still represent if disqualified lawyer took care to avoid exposure of confidential information, screened and will not share and fee, and written notice given to prospective client.

28
Q

PR: Duty of Loyalty - Sex with Clients

A

Under ABA a lawyer must not have sex with its clients unless relationship predated representation.

CA: exception if married or domestic partners

29
Q

PR: Financial Duties - Fees Generally

A

Fees must be communicated to client (no writing requirement) and must not be unreasonable

CA: If fees exceed $1,000 agreement must be in writing unless client is corporation, same previously received services, writing is impractical, client indicates they do not want it, or lawyer acted in emergency situation.

30
Q

PR: Financial Duties - Contingency Fee

A

Must be in writing, signed by client, and show percentage of fee, whether expenses are included, and if included when expenses will be deducted.

CA: also must say lawyer fees are negotiable and explain how work outside of the fee will be charged.

31
Q

PR: Financial Duties - Amount of Fees

A

ABA: must be reasonable, considering all factors

CA: must not be unconscionable

32
Q

PR: Financial Duties - Trust Accounts

A

Must safeguard client property by labeling and storing in a safe place.

Cannot borrow or commingle client funds with personal money. Must use interest bearing account. For small amounts, can commingle client funds and interest is payable to state bar for services to poor.

33
Q

PR: Splitting Fees Outside Firm

A

Under ABA, a lawyer may split legal with a lawyer outside of the firm if

  • total fee is reasonable
  • client agrees in writing that discloses share and
  • either 1) split is in proportion to service performed OR
    2) each lawyer assumes joint responsibility.
34
Q

PR: Duty to Diminished Capacity Client

A

Must maintain normal lawyer-client relationship and lawyer is permitted to take protective action if reasonably believe that client can’t protect self.

35
Q

PR: Duty to Communicate

A

Must keep client reasonably informed, answer client communications, and inform of settlement offers and significant developments

36
Q

PR: Scope of Representation

A

Client makes substantive decisions. Lawyers make decisions on legal strategy. Lawyer may counsel and assist a client to make a good effort to determine the validity, scope, and meaning of a law.

37
Q

PR: Mandatory Withdrawl

A

Fired, or continuing would violate law or ethical rule

CA: Adds if client acts without probable cause and to harass or maliciously injure another

38
Q

PR: Permissive Withdrawal

A

Convince the court there is good cause, including:

  • unreasonable burden to lawyer, but won’t harm client
  • persisting in criminal or fraudulent course
  • client fails to fulfill obligation to lawyer after reasonable warning
39
Q

PR: Duties Upon Termination

A

Must notify client and promptly return all unspent fees and expense advances plus all of their property and material papers.

40
Q

PR: Solicitation

A

Cannot initiate live or phone contact with specific person that you don’t know - ambulance chaser protection

41
Q

PR: Duty of Candor- To Court

A

Lawyer owes the court a duty to present law, facts, and evidence to tribunal in a truthful manner.

42
Q

PR: Duty of Candor to Tribunal: Presenting Law

A

A lawyer must not knowingly make a false statement of law. Must now knowingly fail to disclose controlling authority that is directly adverse to client’s position.

CA prohibits knowingly misquoting authority.

43
Q

PR: Duty of Candor to Court: Stating Facts/PresentingEvidence

A

Lawyer must refuse to offer evidence or facts known to be false. If evidence or facts later revealed to be false, lawyer must use remedial measures (urge client to cooperate, seek to withdraw, or disclose to judge) [CA protects confidentiality so disclosing is not an option.

44
Q

PR: Duty of Candor and Fairness - Perjury issues

A

In civil case lawyer must refuse to call a witness if he intends to perjure himself.

In criminal cases lawyer must take remedial measures (convince, withdraw, disclose).

In CA, client may testify in narrative but lawyer may not assist defendant in perjuring self.

45
Q

PR: Duty of Fairness- Juror Contact

A

A lawyer must not communicate with a prospective or current juror until jury has been discharged.

Lawyer may interview juror after unless 1) communication is prohibited by law 2) juror has made known desire not to communicate 3) communication involves misrepresentation, coercion, or duress.

46
Q

PR: Duty to Produce Evidence

A

A lawyer must not falsify evidence or impede access to opposing counsel.

If you touch/move evidence, you will have to testify about it. If you don’t, you can’t be compelled to do so.

47
Q

PR: Duty of Fairness- Witness Tampering

A

A lawyer must not advise a witness from voluntarily giving information to the other party unless the person is a client, or client’s relative and the lawyer reasonably believe the person’s interest will not be harmed by not giving information.

48
Q

PR: Duty of Fairness - Material from Opposition

A

ABA: promptly notify opposing counsel if you receive it inadvertently.
CA: if you know info is privileged, must stop reading

49
Q

PR: Duty of Prosecutors

A

Prosecutor owes a defendant a duty to prosecute with probable cause, advise caused of right to counsel, protect pretrial rights, timely disclose mitigating even, disclose new evidence of innocence, and if own jurisdiction to defendant.

50
Q

PR: Duty of Fair Dealing - Represented Entities

A

A lawyer must not communicate with a party about subject of representation with person known to be represented by counsel, unless authorized by law or giving second opinion

Applies to employee of an organization.
CA: requires consent for interviews of an officer, director or managing agent of an entity.

51
Q

PR: Duty to Nonrepresented

A

Lawyer may communicate with unrepresented individuals but must not state or imply disinterest.

52
Q

PR: Duty to Avoid Extrajudicial Statements

A

Lawyer must not make extrajudicial statements that would have a substantial likelihood to materially prejudice case.

Lawyer may reply to statement that is likely to materially prejudice a case.

53
Q

PR: Statement About Judicial/Legal Officer and Candidates

A

Under the ABA a lawyer must not make a statement that a lawyer knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office.

In CA, the rule applies to judicial officials and candidates.

54
Q

PR: Duty to Expedite Cases

A

ABA: affirmative duty to expedite
CA: must not delay to harass an adversary or for your personal gain or convenience

55
Q

PR: Chicanery

A

A lawyer must not, during trial, assert personal knowledge, inadmissible material, state person opinion about justness of cause or culpability of a party.

CA Bar Exam- Ca Subjects (8 decks)

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