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Essay Rules > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

L-C Relationship Issues

A
  1. Duty of Loyalty
  2. Duty of Communication
  3. Scope of representation
  4. Duty of confidentiality
  5. Fees
  6. Competence/Care/Diligence
  7. Safekeeping Property
  8. Withdrawal
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2
Q

Non-Client Issues

A
  1. Ads/Solicitation
  2. Duty of Fairness
  3. Unauthorized Practice of Law
  4. Reporting Ethical Violations
  5. Duty to Public/Profession
  6. Specialists
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3
Q

Duty of Loyalty

A

A L has a duty of loyalty to his C that reqs the L to put the interest of his C above all other interests and to avoid conflicts of interests.

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4
Q

Concurrent Conflict

A

A concurrent conflict exists if the rep of one C directly adverse to another C; or there is sig risk that the rep of a C will be materially limited by the L’s responsibilities to another C, former C, third person or L’s beliefs.

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5
Q

Concurrent Conflict Exception

A

L may still undertake rep if:

(1) L reas believes that he can competently and diligently rep each affected C despite the conflict;
(2) the rep is not prohibited by law;
(3) the rep doesnt involved asserting a claim by one C against another C represented by the L in the same proceeding; and
(4) each C gives IC, confirmed in writing.

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6
Q

Difference between ABA/CA Loyalty Exception

A

CA reqs informed written consent, both disclosure and consent mb in writing.

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7
Q

Scope of Representation

A

L must abide by C’s substantive decision (those concerning the objectives of the rep) after L has consulted w/ C. L is responsible for employing the appropriate legal strategy. L may limit the scope of rep if its reas and C gives informed consent

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8
Q

Duty of Fairness/Threats - To Opposing Party

A

L must not threaten to bring disciplinary, admin, or crim proceedings for the purpose of gaining an advantage in civil dispute.

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9
Q

Duty to Report Ethical Vios - ABA

A

L who knows that another L has committed a vio of ethics rules that raises a subst Q of honesty, trustworthiness, or fitness as a L shall inform the appropriate auth.

Except: (1) when the info is protected by the L’s duty of confidentiality to a C; or (2) L gained the info while serving as a member of an approved L’s assistance program.

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10
Q

Duty to Report - CA

A

CA doesnt req L to report misconduct by another L or judge. Must report themselves.

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11
Q

Fee Agts - ABA

A

Under ABA, fee agts mb reas considering the following factors:

(1) time limitations imposed by C or circumstances;
(2) experience, reputation and ability of L;
(3) nature and length of relationship w/ C;
(4) time & labor, novelty & difficulty, and skill req’d;
(5) fee customarily charged in locality
(6) likelihood acceptance will preclude other empl;
(7) amount involved; and
(8) whe fee is fixed or contingent.

TENT FLAW

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12
Q

Fee agts - CA

A

Fee may not be illegal or unconscionable. Fee mb agts mb in writing if over 1k unless C is a corporation, the agt was made in emergency, C waives in writing, or services are for previous C w/ similar service which fee can be implied.

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13
Q

Duty of Competence - ABA

A

L shall rep C w/ the legal knowledge, skill, thoroughness, and preparation reas nec for the rep; L may consult w/ another competent L, acquire the nec skills to become competent before performance is req’d, or refer the matter to another competent L.

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14
Q

Duty of Competence/Care/Diligence - CA

A

CA – L must not intentionally, recklessly, w/ gross neg, or repeatedly fail to perform legal services w/ competence;
L’s duty to act competently includes mental, physical, and emotional ability

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15
Q

Settlement of Claims

A

L shall not settle a claim or potential claim for lia w/ an unrep’d C unless that person is advised in writing of the desirability of seeking and given reas opp to seek ind counsel.

CA - if they’re in fact represented.

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16
Q

Limiting Malpractice Liability - CA

A

CA rule does not allow L to prospectively limit malpractice lia to a C in any circumstance.

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17
Q

Contingent Fee

A

A CF is one which is dependent on the outcome of the case. A CF is not permitted in crim and dom relations matters. CF agts mb signed by the C, and state the method by which fees is determined.

CA reqs fee to be signed by both C and L and each have copy.

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18
Q

Conflict of Interest - Proprietary Interest in Case

A

L shall not acquire a proprietary interest in the COA or subject matter of lit unless its to acquire a lien to secure the L’s fees, and/or contract for a reas contingency fee in civil case.

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19
Q

Duty to Safeguard Property

A

L shall keep C’s prop separate from L’s own prop and not commingle funds.

Upon term of rep, L shall surrender papers and prop to which the C is entitled.

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20
Q

Duty to Withdrawal - Mando Withdrawal

A

L shall withdraw from rep when the rep will result in a vio of the rule of prof conduct, or L’s mental or physical condition materially impairs L’s ability to rep C; or L is discharged.

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21
Q

Duty to Withdrawal - Permissive Withdrawal

A

L may w/d from rep when:

(1) C insists on action involving L’s services that is fraudulent/crim; or
(2) C has used L’s services to perp a crime or fraud (CA reas believes it was crime/fraud);
(3) C fails subst to fulfill an obligation to L re L’s services and has been given reas warning that L will withdraw unless the obligation is fulfilled, or
(4) the rep has been rendered unreas difficult by C, or
(5) other good causes exist.

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22
Q

Duty to Communicate - ABA

A

L shall promptly inform C of any decision that affects C’s informed consent. Reas consult w/ C and keep them informed of the status of the case. Promptly respond to C’s communications and reas reqs for info.

Exception - L may delay transmission of info if C likely react imprudently.

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23
Q

Duty to Communicate - CA Exception

A

CA: allows L to delay transmission of info to C if L reas believes that C would be likely to react in a way that may cause imminent harm to C or others.

24
Q

Duty of Confidentiality

A

The duty of confidentiality req’s a L to keep confidential all info provided to the L for the purpose of rendering legal services.

The duty of confidentiality is nec to ensure complete candor between clients and their atts, so as to facilitate effective legal advise.

25
Q

Confidentiality Exception - ABA

A

Under ABA, a L may disclose in the following situations: the (1) C gives IC; (2) the disclosure is impliedly auth to represent the C; (3) the L reas believes the disclosure is nec to prevent reas certain death or subst bodily harm; (4) to prevent the C from committing a crime or fraud or to mitigate or rectify a crime or fraud committed by the client that has resulted or is reas certain to result in subst injury to the fin interests or prop of another and the C is or has used the L’s services to do so; (5) to comply w/ the ct order; (6) to secure legal advice about the L’s compliance w/ ethics rules, or (7) to est a claim or defense on behalf of the L in a controversy between the L and the C.
CADCCAD - cats and dogs can cuddle and dream.

26
Q

Confidentiality Exception - CA

A

(1) When nec to prevent a crime that would cause reas certain death/subst bodily harm, the L must first make a GF effort to persuade the C not to commit the crim act, and inform the C of the L’s ability to reveal the info, and only reveal as much info as nec to prevent the crime;
(2) When compelled by law or ct order;
(3) To est a claim or defense on behalf of L in controversy between the L and C, or in defense of the conduct the C was involved in w/ L’s services.

27
Q

Ads

A

Gen, advertising is allowed. Ads mb truthful and not be false or misleading. L may ad services through written, recorded, or elec communication, including public media. Unless the prospective C has made it known to L of their desire to not be solicited. Ad must contain the name and office address of at least 1 L responsible for its content; be labeled as ad material: all written recorded, or elec communication must include the word “advertising material on outside of the envelope and at the beginning and end of any recorded or elec communication

28
Q

Solicitations

A

Solicitation is a targeted communication initiated by or on behalf of the L that is directed to a specific person the L knows or reas should know needs legal services in a matter, and that offers to provide, or can reas be understood as offering to provide, legal services for that matter.

L may not conduct in-person, live phone, or real-time elec contact for prof employment when the motive is pecuniary gain.

L may not use agent to do that which the L must not do. Thus, L must not use agent to contact prospective Cs in a manner that would vio the rules.

29
Q

Specialists

A

L shall not imply or state that they are certified as a specialist in a particular field of law, unless L has been certified as a specialist by the ABA or a state-approved org, and the name of the certifying org is clearly ID’d in the communication.
CA - Reqs the org tb certified by the Board of Legal Specialization or accredited by the CA State Bar.

30
Q

Duty to public/profession

A

L should promote public confidence in the profession.

ABA rules L must not make a stmt that he knows is false about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for judicial or legal office.

CA applies to judicial officials and candidates only.

31
Q

Duty to Avoid Extrajudicial Stmts

A

L prohibited from making extrajudicial stmts that a RP should expect tb publicly disseminated if he knows or should know the stmts will have subst likelihood of materially prejudicing the proceeding. L permitted to state the offenses/defenses involved in case and ID of persons involved.

32
Q

Prosecutor Duties

A

Public prosecutor has duty to:

(1) refrain from prosecution in absence of PC;
(2) take reas efforts to ensure accused advised of right to counsel;
(3) timely disclosure to defense of all evi negating guilt;
(4) refrain from extrajudicial comments that heighten public condemnation of the accused;
(5) seek to remedy wrongful convictions.

33
Q

Duty of Fairness -Candor to the Court

A

L shall not knowingly make a false stmt of fact or law to a tribunal or fail to correct a false stmt of material fact or law previously made; fail to disclose adverse legal auth; or offer evi that L knows tb false (perjury); L who knows C intends to engage in fraudulent/crim activity shall take reas remedial measures, including, if nec and permissible, disclosure to the tribunal.

CA - prohibits L from knowingly misquoting to a tribunal the language of a book, statute, decision, or other auth.

34
Q

Duty of Fairness - To Opposing Counsel ABA

A

A L shall not:
unlawfully obstruct evi, or destroy or conceal docs or other material or counsel another person to do so;
falsify evi;
knowingly disobey the ct rules;
allude to any matter L doesn’t reas believe is relevant or will not be supported by admissible evi during trial;
promptly notify the sender of any materials inadvertently sent to L;
requests others to refrain from giving relevant info unless a relative or agent of C;
make frivolous disco req; or
fail to reas comply w/ disco reqs.

35
Q

Duty of Fairness - To Opposing Counsel CA

A

In addition to ABA, L shall not
Suppress evi;
Promptly notify - L should refrain from examining the writing to the extent possible;
Assert personal knowledge of facts;
Pay W to test unless for reas exp fees, comp for loss of time for W to test, or reas exp incurred;
Advise a person to secrete himself or leave idx to avoid being available.

36
Q

Duty of Fairness - Represented Parties

A

L shall not communicate w/ parties or Ws known tb rep by another L unless the other L has consented, or the communication is auth by law or ct order.

37
Q

Compensation from 3rd Parties

A

L shall not accept comp from 3rd parties to rep C unless:

(1) C gives IC (CA - informed written consent);
(2) theres no interference w/ L’s ind prof judgment or w/ the L-C relationship; and
(3) confidential info re representation of C is protected.

38
Q

Bus Transactions w/ C

A

L shall not enter into bus trans w/ C or knowingly acq an interest adverse to C unless:

(1) terms are fair and reas to C; and
(2) terms are fully disclosed in writing to the C in an understandable manner; and
(3) C advised in writing to seek ind counsel; and
(4) C gives informed written consent to the essential terms including whe the L is rep C in transaction.

CA reqs C is actually represented by an ind Land L’s role in trans be fully disclosed in writing.

39
Q

Solicitation of Gifts - ABA

A

L shall not solicit any subst gift from a C or prep an inst that gives the L, or person related to L, a gift unless the L is related to the C.

40
Q

Solicitation of Gifts - CA

A

L may accept a gift if the C has been advised by an ind L who has provided a cert of independent review, or if gift is fair and theres to UI.

41
Q

Financial Assistance to Cs - ABA

A

Providing fin assistance or advances to the C creates a conflict of interest between the C and L’s personal interest.

L shall not provide fin asst to a C in connection w/ lit, except:

(1) contingency cases: L may advance ct costs and expenses of lit; or
(2) indigent Cs: L can advance ct costs and expenses of lit on behalf of indigent Cs.

42
Q

Financial Assistance - CA

A

L may lend money to the C after employment, for any purpose, if the C promises in writing to repay the loan.

43
Q

Sexual Relations w/ Cs - ABA

A

L shall not have sexual relations w/ a C unless a consensual sexual relationship existed before L-C relationship commenced.

44
Q

Sexual Relations w/ Cs - CA

A

Follows ABA, w/ addition that rule doesnt apply to sexual relations w/ the L’s spouse or domestic partner.

CA defines sexual relations as including sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.

45
Q

Imputed Firm Disqualification - ABA & CA

A

A conflict for one att in a firm is imputed to all other atts in the firm, resulting in their disQ unless:

(1) conflict is personal and doesnt present risk of materially limiting the rep by other atts; or
(2) the disq’d L is timely screened from the matter and does not share in the fee; and
(3) CA reqs - the disq’d L did not substantially participate in the same or subst related matter while at their former firm.

46
Q

Fee Splitting - ABA

A

Splitting fees between Ls who aren’t in same firm may be made only if:

(1) total fee is reasonable;
(2) C agrees in writing; and
(3) division is proportionate to the services perf by each L or each L assumes joint responsibility for the rep.

47
Q

Fee Splitting - CA

A

May be made only if:

(1) the Ls enter into a written agt to divide fees;
(2) C consents in writing after full written disclosure that the fees will be divided along w/ the ID of the Ls and terms of division; and
(3) total fee is not increases simply bc of the division of fees.

48
Q

Finder’s Fees - ABA

A

L shall not give anything of value to a person for recommending the L’s services unless its a qualified referral service that’s been approved by an appropriate reg authority.

49
Q

Finder’s Fees - CA

A

CA rule allows a L to make a gift of gratuity for a past recommendation resulting in empl if the gift was not offered or given as consideration of a promise or agt that the referral would be forthcoming or continue in future.

50
Q

Duty of decorum to the tribunal

A

L shall not:

(1) seek to influence jurors, judges, or other officials;
(2) communicate ex parte w/ such persons during proceedings;
(3) engage in conduct intended to disrupt proceedings, or
(4) communicate w/ jurors after they’re discharged if they dont want to communicate with yo bitch ass.

51
Q

Solicitation Exceptions

A

(1) free legal services;
(2) family members;
(3) Cs and former Cs;
(4) Truthful, non deceptive letters, labeled as ad material, to people know to have a specific legal problem.

52
Q

Duty of Fairness - Represented Corporation

A

L must obtain consent of org’s L before speaking w/ (1) one who supervises or regularly consults w/ org’s L; or (2) one who has the auth to obligate the org re the matter at issue; or (3) one whose conduct in the matter may be imputed to the org.

53
Q

Former Government Employees

A

L who has formerly served as a gov EE shall not rep a C in connection w/ a matter in which the L participated personally and subst as a gov EE unless the gov agency gives informed written consent.

Researching and drafting general legislation usually doesn’t constitute a matter for purpose of this conflict rule.

Same standard applies to judges, adjudicative officers, law clerks, arbitrators, mediators.

54
Q

Duty to Supervise

A

L may delegate tasks to a paralegal or other nonL EE, but must supervise the delegated work carefully and mb ultimately responsible for the results. L having managerial control or direct supervisory auth over a nonL must make reas efforts to ensure the the person’s conduct is compatible w/ the prof obligations of the L.

55
Q

Unauthorized Practice of Law

A

A L shall not practice w/ or form a Pship or assn auth to practice law w/ a nonL: L shall not share legal fees w/ a nonL and a nonL shall not direct or control the L’s prof judgment.

56
Q

Duty of Diligence

A

L shall act w/ reas diligence and promptness in rep a C. Reas diligence means that a L acts w/ commitment and dedication to the interests of the C and doesnt neglect or disregard, or unduly delay a legal matter entrusted to the L.

CA - same definition as duty of competence. Reas diligence means that a L acts w/ commitment and dedication to the interests of the C and doesnt neglect or disregard, or unduly delay a legal matter entrusted to the L.

57
Q

Procedure After Withdrawal

A

(1) Return any unearned fees to C;
(2) Return all of C’s property and papers;
(3) Mitigate all potential harm to C; and
(4) Give C proper notice and opportunity to find other counsel.

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