Professional Responsibility

Question 1

Conflict of Interest Language

Answer 1

A lawyer must not represent a client when there is significant risk that the representation will be materially limited by the lawyer’s personal interests. Can do if
The lawyer reasonably believes that he can competently represent each affected client
The representation is not prohibited by law
Does not involve asserting a claim by one client against another client represented by the lawyer in the same proceeding
Each impacted client gives written consent (in writing) and in California the disclosure has to be in writing too

California
If you have a personal relationship with a party or witness the lawyer has to provide written disclosure even if there is no risk that this will limit the lawyers ability to do their job

Question 2

General Stuff

Answer 2

General prohibition of engaging in conduct involving dishonesty or fraud, so can mention this

Question 3

Actions that Harm the Justice System

Answer 3

Can’t engage in actions that harm the justice system like assisting a judge in violating the rules of professional conduct and implying you can improperly influence a judge

Question 4

Discrimination

Answer 4

ABA-lawyers can’t discriminate based on a protected characteristic
California-can’t engage in unlawful discrimination
Can’t permit unlawful discrimination
If you are both subject to investigation and being sued you have to tell the bar association

Question 5

Duties to Clients

Answer 5

Confidentiality
Loyalty
Financial
Competence

Question 6

Duties to the Court

Answer 6

Candor
Fairness
Dignity

Question 7

Mandatory Rejection or Withdrawal

Answer 7

Representation will lead to a violation of the rules of professional conduct
Lawyer’s physical or mental well being substantially impairs the lawyer’s ability to represent the client
Lawyer is discharged by the client
California-also requires you to withdraw if the litigation is only for the purpose of harassment or maliciously injuring another person

Question 8

Permissive Withdrawal

Answer 8

If they can do it without substantially hurting the client or
California says that you can do it if the client agrees except if the court says no (like it’s close to trial)
Good cause
Client is involved in criminal course of action using lawyer’s services
Has used lawyer to perpetrate a crime or fraud
Fails to fulfill obligation to lawyer (namely getting paid) but the lawyer has to give the client reasonable warning
Client is being unreasonably difficult
Repugnant action
Unreasonable financial burden on the lawyer

Question 9

Pot

Answer 9

California-says you have to tell a client when California law conflicts with federal law or tribal law

Question 10

Outside Reporting/Protecting Interest of Corporation

Answer 10

When you’re protecting a corp from itself, you can run it up the flagpole and if no one does anything about it then you go to an outside authority to the extent it will prevent substantial injury
California-doesn’t allow you to report outside cause they love confidentiality, just lets you withdraw

Question 11

Competence

Answer 11

You can learn or consult with another lawyer who is competent or if you’re not competent you can step in in an emergency
California-also says that you have to be emotionally and mentally able to do the work

Question 12

Diligence

Answer 12

Have to act with reasonable diligence regarding a client’s interest
California-only actionable if it’s repeatedly or intentionally or with gross negligence

Question 13

Communication

Answer 13

You need to communicate with your client—tell them of significant developments etc and promptly comply with requests for information from the court
You can delay transmitting info but you have to do it eventually
California-have to tell them if you don’t have liability insurance and if you lose it you have to tell the client
Always have to tell them immediately of proposed plea bargain and settlement offers (but if it’s a settlement offer they’ve already said if it would work or not then it’s not a significant development)
Can only delay if if they think the client would be likely to act in a way that would cause them imminent harm
Remember whenever it’s in writing the lawyer’s disclosure has to be writing too

Question 14

Confidentiality

Answer 14

Lawyer must not disclose any information relating to the representation of the client
Can’t use information that is not generally known to the clients disadvantage
And have to make sure that other people can’t access the information
There is implied authority to disclose or they can give you express authority

Question 15

Exceptions to Confidentiality

Answer 15

Prevent death or imminent substantial bodily harm
California-the harm has to be the result of a criminal act and the lawyer has to make a good faith effort to dissuade them from doing it and inform the client that they’re going to reveal the info
Prevent or rectify substantial financial loss
There is a crime or fraud that is going to result in great financial losses and the lawyer’s services were used in furtherance of
California-doesn’t exist in CA we don’t believe in this we believe in confidentiality
Also regarding malpractice stuff
Ethics advice isn’t officially recognized in CA but it does happen and it’s chill

Question 16

Direct Adversity Conflicts

Answer 16

Client will be directly adverse to another client who is represented by the lawyer or
There is a significant risk that the lawyer will be materially limited by the lawyers own interests or responsibilities
Like when they owe a duty to some third person
Close family relationships with opposing counsel
Financial interest in the matter
California makes you disclose relationships even if there isn’t significant risk, even things like being in a relationship with the client of the opposing party’s lawyer
They can still do it if
They reasonably believe that they can competently and diligently represent the client (reasonable lawyer standard)
The representation is not prohibited by law
Basically you can’t be on both sides of the litigation and that’s never consentable
Effected client gets informed consent, confirmed in writing
Examples of direct adversity
Multiple clients in the same matter whose interests are in actual conflict
Could involve a cross-examination of an existing client
Mere economic adversity isn’t enough—they can be economically adverse just not actually adverse
California-when you represent the insured the insurance company is also your client for conflicts except if it’s just to indemnify

Question 17

Business Transactions with Client

Answer 17

First Discuss Over Coffee-fairness, disclosure, outside lawyer, consent
You can’t enter into a business relationship with a client unless
The terms are fair to the client
The terms and everything are fully disclosed in writing
The client is advised in writing that they should get independent advice
Informed consent in writing
It’s more things than you think like accepting stock as payment and buying or selling property to/from a client

Question 18

Gifts from Clients

Answer 18

A lawyer can’t
Solicit a substantial gift from a client
Prepare an instrument giving a substantial gift to the lawyer (except if it’s your relative—different story)
California-you can do it even for not a relative if they were advised by an independent lawyer who provides a certificate of independent review

Question 19

Gifts to Clients

Answer 19

Litigation
Can advance court costs and that can be contingent on winning
Indigent-can pay outright but only the court costs
Pro bono-can pay basic living expenses but you can’t like make a thing out of it
California
Not just litigation but all contexts
Can’t buy a potential client
It’s not just litigation expenses but all expenses
Can lend money to a client for any purpose if the client promises in writing to pay them back
Third party can also idk this is super confusing

Question 20

Aggregate Settlement agreements

Answer 20

Inform both parties and informed consent in writing-just be transparent

Question 21

Payment from Someone Other than the Client

Answer 21

Client informed consent
No interference from the other party
Protect information
CA-none is necessary if it’s requested by a court order or they’re rendering services on behalf of an agency or nonprofit

Question 22

Settling Malpractice

Answer 22

Can’t settle if they’re unrepresented unless you advise them in writing to get outside counsel and they have time and opportunity to do so

Question 23

Limiting your own Liability

Answer 23

If you try to do it they have to be independently represented
CA-can’t do it

Question 24

Media Rights to a Case

Answer 24

Can only get them after the client’s matter has concluded including appeal
CA-no specific rule—you treat it as a business transaction

Question 25

Foreclosure and Sale

Answer 25

CA only Can’t purchase from a foreclosure sale when you or someone from your firm is representing them Represent the seller if the purchaser is related to the firm or you

Question 26

Sexual Relationships With Clients

Answer 26

Has to predate the representation | Not imputed but you still have to see if it will materially limit the representation

Question 27

Conflict with Former Client

Answer 27

Can’t represent someone whose interests are adverse to your former client in a substantially related matter without informed consent substantially related matter-same transaction or legal dispute or There could be information overlap Remember this can also be analyzed with the material limitation to your If it’s an imputed conflict, you also have to look at where you acquired confidential information

Question 28

When the Info Came from the Firm’s Representation and not Yours

Answer 28

If you just have confidential information then you can be screened and not share in the fee And the former client has to be given notice

Question 29

Firm and their Former Client

Answer 29

Can’t do it if one remaining lawyer has confidential information then no or if it’s the same or a substantially related matter And as with all of these things, there needs to be informed consent, confirmed in writing

Question 30

Prospective Clients

Answer 30

You receive confidential info from a consultation you can’t represent an adverse party later on if the information could be significantly harmful unless both consent CA-it’s material information not just information that could be significantly harmful Firm imputation Disqualified lawyer tried not to get more information than necessary DQd lawyer is screened and won’t share in the fee Give written notice to the prospective client but you don’t have to do informed consent

Question 31

Going from Gov to Private Work

Answer 31

Can’t have worked on something personally and substantially on a matter and creating a regulation isn’t a matter Can also receive information that could be used to the material disadvantage even to the opposing party

Question 32

Going from Gov to Private Work

Answer 32

Can’t have worked on something personally and substantially on a matter and creating a regulation isn’t a matter Can also receive information that could be used to the material disadvantage even to the opposing party

Question 33

Private Sector to Government Work

Answer 33

Basically the same conflict rules as normal

Question 34

Work as Judge or Clerk

Answer 34

Personal and substantial involvement is the issue | Unless all parties agree

Question 35

Fees and Property

Answer 35

ABA says you can’t charge an unreasonable fee CA-illegal or unconscionable fees ABA says you can’t do double billing CA-can if the fee charged to each isn’t unconscionable You tell both parties at the outset And there was consent

Question 36

Communication of Fee

Answer 36

ABA-you only have to do it in writing if it’s a contingency agreement and if it’s a regular client and you’re doing the same thing for the same fee you don’t need to convey it every time CA-if it’s gonna be more than 1k then it has to be in writing except If the client is a corporation They say in writing they don’t want the fee arrangement in writing Same thing that they’ve done for the client again Emergency Impractical for whatever other reasons idk what that could be

Question 37

Advance Payments

Answer 37

Can require advance payments but you have to pay it back if you don’t earn the whole thing unless it’s a true retainer CA-if it’s advance and not a true retainer if it’s gonna be non refundable you have to put that in writing

Question 38

Contingent Fees

Answer 38

Has to be reasonable (can't do it if you know it'll be like two hours of work) CA-Limits on medical malpractice contingent fees Has to be in writing listing how the fee will be calculated, how expenses will be deducted and before or after, what if any expenses client has to pay regardless of the outcome CA-also have to say that it’s negotiated between the two and not set by law and how work not covered by the contingency will be calculated You get fired, you’re still entitled to the value of your services, but only when and if the client recovers No contingency fees in criminal cases or divorces when it’s based on getting a certain amount

Question 39

Handling Money

Answer 39

Have to put funds in a client trust account and interest goes to client and if the interest is too small you pool it and give it to the state Bar CA-also for the benefit of a third party—not sure what the difference is between these things but idk Advance payments go into client trust and is taken out by lawyer as it is earned

Question 40

Safekeeping of Property

Answer 40

Have to identify and label properties and securities of the client Notify the client when you get property in which they have an interest and promptly deliver Keep records for 5 years

Question 41

Fee Disputes

Answer 41

CA-you can agree in advance for how to resolve disputes rather than going with whatever mandatory procedure

Question 42

Splitting Fees with Other Lawyers Outside Firm

Answer 42

Can do it if Fee is reasonable It’s split in proportion to the services rendered or each lawyer assumes joint responsibility in the matter The client agrees in writing Basically you can’t do a referral fee CA-you can do true referral fees but it has to be in writing, the client can’t be charged more to compensate for the referral fee and they have to agree in writing

Question 43

Splitting Fees with NonLawyers

Answer 43

``` Can’t do it except Paying a death benefit Buying a law firm from a dead person Compensation in a retirement plan for non-lawyer employees Court awarded legal fees with a nonprofit CA-can be settlement but has to be Written agreement with org Written consent of the client Total fee isn’t increased ```

Question 44

Candor to the Tribunal

Answer 44

Can’t knowingly make a false statement of law or fact Also have an affirmative duty Correct false statements Generally no duty to disclose facts that are bad for your client but in an ex parte proceeding you need to disclose all material facts Have to disclose adverse legal authority if it is controlling and it’s directly adverse to your position CA-specifically have a rule against misquoting

Question 45

Offering False Testimony

Answer 45

Can’t offer or put on the stand someone who you know if going to offer false testimony If you think the testimony is false you need to take remedial action by Urging them to stop Maybe try to withdraw but that doesn’t really help Disclose info to judge even if that goes against duty of confidentiality CA-you can’t tell the judge-CA puts confidentiality over candor and the ABA doesn’t

Question 46

Perjury by Criminal Defendant

Answer 46

Regardless you have to let them testify (in CA), if you only think it might be you can just let them testify If you know it is take the same remedial measures You can take the remedial measures CA-you just have to let them speak and say is there anything else you have to say and do it in narrative form Duration-until the end of the proceedings, until it has been affirmed on appeal or the time for appeal has expired

Question 47

Frivolous Claims and Defenses

Answer 47

Can’t say something unless there’s a legal basis for it But you can make a good faith argument for changing the law But in criminal cases it’s a different story and you can make them prove every element of the case

Question 48

Expediting Litigation

Answer 48

Have to expedite litigation consistent with the interests of client CA-can’t make any moves that have no other purpose than to delay

Question 49

Improper Influence

Answer 49

Can’t try to seek to have improper influence on a judge, agent of the court or a juror CA-specifically limits the giving of anything of value to judges but they can contribute to campaign funds

Question 50

Contact with Jurors

Answer 50

No contact with juror or prospective juror about the case CA-a lawyer not connected to the case must not communicate with a known juror about the case The juror leaving the rose—you just have to tell the judge

Question 51

After Discharge of the Jury

Answer 51

Can talk to discharged jurors except when Prohibited by law They have said they don’t want to communicate The communication involves duress or coercion

Question 52

Trial Counsel as Witnesses

Answer 52

You can only serve as a witness if It’s relating to an uncontested issue Will relate to the nature of legal services rendered in the case Withdrawal would cause substantial hardship to the client CA-instead it’s informed written consent

Question 53

Chicanery and Disruptive Conduct

Answer 53

You can’t assert Personal knowledge of facts Refer to inadmissible evidence State a personal opinion about the guilt or innocence, culpability or the justness of a cause CA says you just can’t do guilt or innocence Disruptive conduct CA-doesn’t have this rule for fear it would be interpreted too broadly

Question 54

Duties to Opponents-Access to Evidence

Answer 54

Have to give evidence when there is an obligation to produce You have to give material evidence but you don’t need to tell confidential testimony CA-can’t suppress evidence or advise a person to flee the jurisdiction

Question 55

Advising not to Give Information

Answer 55

You can advise a person not to give info iff The person is a client or their relative, employee or agent The lawyer thinks that their interests will not be adversely affected by this

Question 56

Paying Witnesses

Answer 56

Can’t induce witness to testify through payment but only can pay Travel expenses Compensation for loss of time for attending Reasonable fees for expert witnesses

Question 57

Can’t Abuse Discovery Rules

Answer 57

ABA says you can’t file frivolous discovery requests | CA-says that doing this isn’t an ethical violation

Question 58

Threats to Gain Advantage

Answer 58

Can’t threaten criminal, administrative or disciplinary action to gain advantage for a client If they really believe they’re doing something wrong they can obvs say they’re going to report it

Question 59

Special Duty to Prosecutors

Answer 59

Refrain from prosecuting if they know there’s no probable cause They have to be advised of the right to counsel Can’t seek a waiver of pretrial rights from someone unrepresented Must disclose all the relevant information to the defense No extrajudicial statements Can’t subpoena a lawyer unless Info isn’t privileged Evidence is essential No feasible alternative CA-doesn’t give a shit about lawyer subpoenas

Question 60

Duty to Any Case

Answer 60

If they know of evidence that someone didn’t do it they have an affirmative duty to disclose this to the appropriate authority If it’s in your jurisdiction, you have to tell the defendant and launch an investigation And if it’s clear and convincing evidence you have to remedy it

Question 61

Trial Publicity

Answer 61

All you can do is respond to a war in the media

Question 62

Truthfulness in Statements to Others

Answer 62

Can’t make false statements of material fact to a third party over the course of representing a client but puffery is OK (estimates of price or intentions to settle or not)

Question 63

Client is Fruad-y

Answer 63

You can disclose when you’re avoiding aiding someone in a crime or fraud

Question 64

Communicating with a Person they know to be Represented by Counsel

Answer 64

Can’t communicate with anyone about the representation that they know to be represented by counsel unless Person’s council gave permission There is a direct authorization to do it CA-there isn’t a prohibition on communicating with a public official or public entity

Question 65

Communicating with Corporation Represented by Counsel

Answer 65

``` If it’s a corporation it’s a person Who supervises the lawyer’s matter Has an authority to obligate Their act or omission could be imputed to the organization CA-slightly different but same result ```

Question 66

Communicating with an Unrepresented Person

Answer 66

Lawyer can’t imply that they’re disinterested If they misunderstand the lawyer’s role then the lawyer has to correct this issue They can’t give legal advice except to say that they should get a lawyer

Question 67

Lawyer as Third Party Neutral

Answer 67

They have to say that they’re not representing them and make sure they understand

Question 68

Acting as Advocate in Legislative and Admin Proceedings

Answer 68

If they’re representing someone they have to say that they are but they don’t need to disclose identity and the same rules regarding relationship to the court applies

Question 69

Respecting the Rights of Others

Answer 69

If there’s a mistake in sending the info (accidentally cc'd on an email that you shouldn’t have been) then you have to notify them promptly CA-it applies only when they know or should have known it’s work product They have to try not to read any more of it than necessary and then notify the sender

Question 70

Advertising

Answer 70

No false or misleading statements Can’t state or imply in advertising things that aren’t true Certification of specialist CA-more specificity No saying that you can provide services in a language other than english if you can’t or you have to say the level of the person at the firm who can provide services in a language other than English

Question 71

California Advertising Specifics

Answer 71

Can’t have Guarantee on an outcome of a case Words or symbols that indicate quick cash Impersonation without disclosing it’s an impersonation Have to disclose that it’s a dramatization Contingent fee offer that says that doesn’t disclose you have to pay if you don’t recover if that’s the arrangement

Question 72

Solicitation

Answer 72

If there’s pecuniary gain on the line you can’t solicit with live, in person or real time auditory communications CA-can also include text messages Some targets are considered less vulnerable Another lawyer Close family or people with whom you have a close relationship or person who routinely uses the type of legal services offered by the lawyer

Question 73

Other Forms of Communication

Answer 73

Can send emails etc to people with a known legal problem | CA-Has to say advertisement on it

Question 74

Can’t Solicit

Answer 74

If someone says they don’t want solicitation | Or it involves harassment

Question 75

Reciprocal Referral Agreements

Answer 75

To like a dr or whatever | Can’t be exclusive and the client must be informed

Question 76

Unauthorized Practice of Law

Answer 76

Lawyer Can’t Practice law in a jurisdiction where they aren’t licensed Assist in the unauthorized practice of law Permissible Lay Activities Real estate broker filling in blanks Tax adviser doing tax return Disseminating information to the general public Impermissible Drafting sales agreement Lay tax advisor counseling on legal implications of their conduct Estate planner drafting wills

Question 77

California Disbarred or Inactive Lawyer

Answer 77

CA-Inactive lawyer can’t do most things like a layperson But they can do research and drafting in clerical assistance terms or go to depo to do clerical work A lawyer has to tell the bar that they’re using an ineligible person Don’t need to tell them if it’s just typing or maintenance

Question 78

Out of State

Answer 78

Gotta get pro hac vice But if it’s reasonably related to the home state practice then pro hac isn’t necessary Also can be a different story if they’re in-house counsel ie employed by their only client Limited branch of law like patent prosecution

Question 79

Relationships with Nonlawyers

Answer 79

Can’t form a partnership with a nonlawyer if any of their activities include the practice of law Law firms should not Have a nonlawyer own an interest Or is a corporate officer Has the right to direct or control lawyers

Question 80

Law Related Services

Answer 80

If you provide law related services then you’re still subject to the rules of professional conduct When the lawyer provides services that aren’t distinct from legal services Or it’s provided by an entity controlled by the lawyer Unless the lawyer takes reasonable measures to ensure the client knows are not legal and the attorney-client relationship doesn’t apply

Question 81

Restricting Rights to Practice

Answer 81

Can’t have non competes except When it’s about retirement benefits It’s part of a settlement agreement

Question 82

Supervisors and Subordinates

Answer 82

Subordinate will not be penalized if they go along with a reasonable resolution of an arguable question of professional duty If you ordered someone’s misconduct or ratified it or Someone else fucked up and you knew it and failed to take remedial action

Question 83

Have to Make Sure You’ve Trained Subordinates

Answer 83

Have to take reasonable measures to make sure that lawyers and nonlawyers are are acting in accord with professional conduct standards

Question 84

Self-Regulating

Answer 84

If you know and it raises a substantial question as to their trustworthiness or fitness to be a lawyer they must report unless They got it from lawyers seeking help Or it would breach duty of confidentiality CA-says that you should self report