PROFESSIONAL RESPONSIBILITY

Question 1

FORMATION OF A CLIENT RELATIONSHIP

Answer 1

A lawyer-client relationship is formed when a person seeks legal services from a lawyer and the lawyer either manifests or fails to manifest lack of consent, and knows or should know the client reasonably relies on their services.

Question 2

CLIENT-ATTORNEY RELATIONSHIP

Answer 2

When directed by a client to violate an ethical rule, the lawyer must explain why they cannot comply. If the client insists, the lawyer must withdraw.

Question 3

ALLOCATION OF AUTHORITY*

Answer 3

Under ABA and CA rules, the client controls the objectives of representation, and the lawyer controls the legal and tactical means of achieving those objectives.

Question 4

DUTY OF LOYALTY

Answer 4

A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts.

If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel.

The model rules encourage advisement in writing, that the clients be advised of the conflict, and waive their rights related to these conflicts.

In CA, writing is required when an attorney represents clients with actual or potential conflicts.

Question 5

DUTY OF COMPETENCE

Answer 5

A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

A lawyer can make himself competent through reasonable preparation or by associating with a lawyer of established competence in the field.

In CA, a lawyer must not intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence.

Question 6

PERSONAL CONFLICTS OF INTEREST

Answer 6

A personal conflict of interest occurs when the lawyer suspects a conflict however representation is not materially limited.

ABA rules do not require informed written consent, but CA rules do.

Question 7

CONFLICT OF INTEREST - CURRENT CLIENTS

Answer 7

A conflict of interest with current clients exists if the representation is directly adverse to another client, or there is a significant risk the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties, unless:

a) the lawyer reasonably believes he can provide competent representation;
b) not prohibited by law;
c) two party opponents are not represented by the same lawyer; AND
d) each client gives informed consent in writing.

Upon determining a conflict, the lawyer should request to withdraw. in CA, both disclosure and consent must be in writing.

Question 8

CONFLICT OF INTEREST - FORMER CLIENTS

Answer 8

Unless a former client gives their informed consent, a lawyer cannot thereafter represent another person in the same or a substantially related matter when the person’s interests are materially averse to the interests of the former client.

Question 9

BUSINESS TRANSACTIONS WITH A CLIENT

Answer 9

A business transaction between a lawyer and the 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 10

WITHDRAW

Answer 10

Under ABA rules, a lawyer may seek to withdraw if it can be done without materially harming the client. If it will harm the client, a lawyer may only withdraw if:

1. The client persists in crime or fraud,
2. Lawyer learns previous services were used to perpetuate crime,
3. Lawyer finds course of action repugnant,
4. Client fails to pay,
5. Representation will lead to a financial burden on the lawyer,
6. Client has made representation unreasonably difficult, AND
7. Other good cause.

Question 11

MANDATORY WITHDRAW

Answer 11

A lawyer must withdraw if:

1. Discharged,
2. Lawyer has a limiting physical or mental condition
3. The representation will result in a violation of an ethics rule or other law, in CA - if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. In this case, the lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment.

ABA and CA rules require the lawyer obtain approval from the court if they seek withdraw after the action was filed.

Question 12

CA WITHDRAW

Answer 12

In CA, 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 13

MALPRACTICE

Answer 13

A lawyer may not agree to limit their malpractice liability without advising the client in writing to seek independent counsel.

In CA, a lawyer may not limit their malpractice liability.

Question 14

DUTY OF COMMUNICATION

Answer 14

A lawyer must keep the client reasonably informed about any significant developments relating to the representation. A lawyer must promptly inform the client of any decision requiring informed consent, consult regarding objectives, and promptly comply with reasonable information requests.

Question 15

WHEN AN ORGANIZATION IS THE CLIENT

Answer 15

If a lawyer has the organization as a client, they are not representing the individual members of the organization. This would implicate the duty of confidentiality and formation of an attorney-client relationship.

Question 16

DUTY OF DILIGENCE

Answer 16

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

In CA, a lawyer cannot intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing their client.

Question 17

DUTY OF CONFIDENTIALITY

Answer 17

A lawyer has a duty to keep confidential all privileged information that is part of the attorney-client relationship.

ABA - a lawyer may disclose confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent certain death or substantial bodily injury, or to secure legal advice about compliance.

In CA, a lawyer may, but is not required, to disclose confidential information 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 the client that the attorney will inform the authorities.

Question 18

DUTY OF FINANCIAL INTEGRITY

Answer 18

A lawyer owes a duty of financial integrity to their client to bill appropriately and not co-mingle funds.

Question 19

REPORTING PROFESSIONAL MISCONDUCT

Answer 19

A lawyer must report another lawyer or judge when the lawyer knows of a violation of ethical rules that raises a substantial question regarding the honesty, trustworthiness or fitness of the subject lawyer/judge.

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 professional capacity
4. disciplined
5. sanctioned for 1k or more
6. sued for malpractice
7. a court judgment finds the lawyer grossly incompetent or willfully misrepresented a client.

Question 20

FEE AGREEMENTS

Answer 20

A lawyer shall not charge or collect an unreasonable fee (In CA, unreasonable = shocks the conscious)

Written fee agreements are advisable under the ABA rules, and mandatory in CA unless the fee is over $1,000 or less, the work is routine, the client is a corporation, or client waives the requirement for a writing.

A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

Question 21

REASONABLE FEE

Answer 21

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

Question 22

THIRD PARTY PAYMENTS

Answer 22

Allowing a third party to pay for legal fees is generally 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 any confidential information. Here, the client must give informed consent.

In CA, informed consent must be in writing.

Question 23

FEE SHARING BETWEEN LAWYERS

Answer 23

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
4. CA - fees cannot be increased because of the division, and
5. CA - the fees aren’t unconscionable.

Question 24

GIFTS

Answer 24

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 person related to the lawyer any substantial gift, unless the lawyer is related to the client.

Question 25

REFERRALS

Answer 25

ABA - A lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients.

CA - referral fees can be paid if the client a) consents in writing, b) the fee does not increase the cost to the client, and c) is not unconscionable.

Question 26

ADVANCE OF EXPENSES

Answer 26

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

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 27

CONTINGENCY FEE AGREEMENTS

Answer 27

These agreements state that the lawyer will be paid out of any recovery the client receives. The agreement must be in writing, signed by the client, and include the % 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 are negotiable.

A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

Question 28

SHARING FEES WITH NON-LAWYERS

Answer 28

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 29

SOLICITATION

Answer 29

A lawyer or his agent cannot solicit a client by in-person, live telephone or real-time electronic contact when the significant motive is pecuniary gain.

Exceptions exist for friends, family, if the solicited person is a lawyer.

Question 30

ASSISTING NON-LAWYERS IN THE PRACTICE OF LAW

Answer 30

A lawyer who assist 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 paralegal duties.

Question 31

DUTY OF CANDOR TO THE COURT

Answer 31

A lawyer cannot engage in conduct involving dishonesty or fraud. A lawyer cannot knowingly make false statements, 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 32

DUTY OF CANDOR REMEDIAL MEASURES

Answer 32

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 criminal trials, the lawyer may allow the client to testify in the narrative fashion.

Question 33

WITNESS PERJURY

Answer 33

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, and third - tell the court.

in CA, allow the defendant to testify in the narrative fashion.

Question 34

FRIVOLOUS CLAIMS

Answer 34

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 35

DUTY OF FAIRNESS TO ADVERSARIES

Answer 35

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. is authorized by law or court order to do so, OR
3. CA - It is a public official, board committee or body.

Question 36

INADVERTENT RECEIPT OF DOCUMENTS

Answer 36

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

Question 37

TRIAL PUBLICITY

Answer 37

A lawyer shall not make extrajudicial statements that the lawyer knows or should know will be disseminated publicly and are likely to materially prejudice the case.

Exceptions - statement to limit adverse publicity, when limited to the claim, defense or identification of the person, when in a public record, warning of danger, or information necessary for apprehension.

Question 38

SEXUAL RELATIONS

Answer 38

A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 39

EX PARTE COMMUNICATIONS W/ THE JUDGE OR OFFICIALS IN CAPACITY

Answer 39

A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, except for logistics and emergency information.

Question 40

LAWYER AS A WITNESS

Answer 40

Under ABA rules, a lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a necessary witness, unless:

1. the testimony relates to an uncontested issue;
2. the testimony relates to the nature and value of legal services; OR
3. disqualification of the lawyer would work substantial hardship on the client.

CA law is the same as ABA but in lie of (3) CA has an exception allowing representation if a lawyer obtains informed written consent from the client.

Question 41

POTENTIAL CONFLICTS OF INTEREST -

PRESENT CLIENT & PRESENT CLIENT

Answer 41

A potential conflict of interest exists when the lawyer suspects a concurrent conflict exists when a representation is:

1. directly adverse to another client, OR
2. materially limited by the responsibilities to another client, a former client, a third party, or the lawyer’s own interests.

Under CA, without the informed written consent of each client, a lawyer may not represent more than one client in a matter in which the interests of the clients potentially conflict.

ABA model rules do not require informed written consent for potential conflicts.