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Professional Responsibility Flashcards

Be ethical - always. And Party on!

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1
Q

Mandatory Duty to Withdraw

A

Mandatory Withdraw
A lawyer must withdraw if continuing would violate a law or ethical rule (includes knowingly pursuing a frivolous claim); The lawyers physical or mental condition materially impairs their ability to represent their client; or the lawyer is discharged.

In California, a withdraw is mandatory if the lawyer knows or should have known that the client is acting without probable cause to harass or maliciously injure another person; or The representation will result in violation of the Rules of Professional Conduct or State Bar Act.

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2
Q

Permissive Duty to Withdraw

A

Withdraw is permitted if there is good cause, and it can be accomplished without material adverse effect on the interests of the client.

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3
Q

Duty of Diligence

A

ABA: A lawyer shall act with reasonable diligence and promptness in representing a client.
CA: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.

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4
Q

Duty to Avoid Frivolous Claims

A

A lawyer shall not bring or defend a proceeding unless there is a good faith basis in law for an action, claim, or defense.

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5
Q

Threats in a Civil Case

A

Under the ABA rules, an attorney may threaten another attorney with criminal or disciplinary action in a civil case if the threat is related to the case itself. In California, such threats are not permissible.

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6
Q

Duty to Report Misconduct

A

Under the ABA rules, a lawyer must report to the appropriate professional authority any other lawyer’s or judge’s violation of the rules in legal or other context if it relates to a substantial question of the person’s honesty, trustworthiness or fitness.

In California, there is no ethics rule that requires a lawyer to report misconduct by another lawyer but does require self reporting to the state bar for certain violations. Also in California, a lawyer can be disciplined for merely knowing of a firm member’s disciplinary violation but doing nothing to prevent it.

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7
Q

Duty of Competency

A

An attorney must render competent services to the client. Competency relates to the lawyer using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. (CA) A lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.

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8
Q

Duty of Confidentiality

A

A lawyer cannot reveal anything related to the representation of a client without the client’s consent.

The duty applies regardless of whether the client requests that the information be confidential. The duty can attach before a lawyer/client relationship is formed. If no employment results, the party seeking to disqualify bears the burden of proof that the confidences were imparted and once it attaches it continues indefinitely.

In California, the duty ends when an estate is settled.

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9
Q

Duty of Loyalty

A

A lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of his client above all other interests and to avoid any conflicts of interest.

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10
Q

Duty to Avoid Conflicts of Interest

A

A lawyer must avoid all conflicts of interest with his client. A lawyer must avoid actual (current) conflicts of interest and potential (future) conflicts of interest.

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11
Q

Concurrent Conflicts of Interest

A

A lawyer may not represent a client where there is a conflict of interest. A concurrent conflict of interest can arise in several ways:
Between Current Clients: Representation of one is directly adverse to another
Between Current Client and Another: Significant risk that representation will be materially limited due to responsibilities to another person.

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12
Q

Exception to Concurrent Conflicts of Interest

A
  1. Lawyer reasonably believes they can provide competent and diligent representation;
  2. The representation is not prohibited by law;
  3. Clients are not asserting a claim against each other;
  4. Each client gives written informed consent.

California:
Must still provide written disclosure of relationship to client so long as:
1. Lawyer/another lawyer in firm has relationship to party or witness, or
2. Lawyer knows/should of relationship between opposing party’s lawyer and lawyer.

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13
Q

Duty re: Representation of Insurance (California Rule)

A

Lawyers can represent both insured and insurers whereby the insurer has contractual right to unilaterally select counsel for the insured resulting in no conflict of interest by statute.

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14
Q

Duty re: Representation of Corporate/Organizational Clients

A

A lawyer employed by an organization or corporation represents the organization or corporation and must act in the best interest of the organization or corporation.

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15
Q

Representation of Organization Individuals

A

A lawyer may also represent the organization and its officers, directors, employees, shareholders, or other constituents if the requirements for the exception to represent those with concurrent clients are met.

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16
Q

Organization: Reporting Conduct to a Higher Authority

A

If the lawyer knows that an officer, employee, or other person associated with the org. is engaged in an action that lawyer (CA: knows/should) is a violation of a legal obligation or law reasonably imputable to the org. and is likely to result in substantial injury to the org., the lawyer shall report up, and refer the matter to a higher authority in org. unless the lawyer reasonably believes it is not the best interest of org.

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17
Q

Failure to Act by Higher Authority in Organization

A

If the highest authority fails to take action and lawyer reasonably believes violation will result in substantial injury, lawyer may:

ABA: Report out and reveal information even if confidential

CA: Lawyer may not report out if it will violate confidentiality. Lawyer should urge reconsideration, resign from representation, or withdraw. (Exception: violation will result in great bodily harm/death)

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18
Q

No Aggregate Settlements/Guilty Pleas

A

A lawyer who represents two or more clients shall not participate in making aggregate settlement of the claims unless each client gives written informed consent.

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19
Q

Lawyer Who Was A Former Government Employee

A

A lawyer who has formerly served as a government employee shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a gov employee without written informed consent.

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20
Q

Imputed Firm Disqualifications

A

A conflict for one attorney in a firm is imputed to all other attorneys in the firm, resulting in their disqualification, unless:
1. Conflict based on personal interest of disqualified lawyer and does not present significant risk of materially limited representation by others.
2. Conflict based on former client at a prior firm, lawyer is timely screened.
3. Former client is provided written notice and certifications of compliance.
4. CA only: prohibited lawyer did not substantially participate in same or related matter.

Client can waive imputed disqualifications with informed written consent.

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21
Q

Conflicts between client and a third party

A

A conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer’s loyalty/responsibility to a third party.

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22
Q

Compensation from third parties

A

A lawyer shall not accept compensation from third parties to represent the client unless:
1. Client gives informed (CA: written) consent
2. No interference with lawyer’s independent judgment
3. Information relating to representation remains confidential

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23
Q

Conflicts between client and the lawyer’s personal interest

A

A conflict of interest exists if there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interest.

The lawyer’s personal relationships and beliefs can cause a conflict of interest. This can be waived with full disclosure and written informed consent

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24
Q

Opposing Lawyer is Lawyer’s Relative

A

Lawyers closely related by blood or marriage must obtain informed consent before representing clients of the same or related matters.
CA extends to when one lawyer is the client of the other lawyer, two lawyers cohabitate, or two lawyers have an intimate relationship.

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25
Q

Sexual Relations with Clients

A

ABA: A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before commencing representation.

CA: Applies ABA except this does not apply to spouse or registered domestic partner.

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26
Q

Business Transactions with Clients

A

A lawyer shall not enter into a business transaction with a client or knowingly acquire an interest adverse to the client, unless…
1. Terms are fair to client,
2. Terms are fully disclosed in writing (CA: lawyer’s role disclosed)
3. Client is advised in writing to seek independent counsel
4. Client gives informed written consent to essential terms.

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27
Q

Solicitation of Gifts from Clients

A

Creates a conflict between client and lawyer’s personal interests. Lawyer shall not solicit gift or prepare instrument that grants lawyer gift unless the lawyer is related to the client. CA: Lawyer may accept a gift if the client has been advised by independent counsel who prepares certificate of independent review or if gift is fair with no undue influence.

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28
Q

Proprietary Interest from Client

A

A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of the litigation unless it is to:
1. Acquire a lien to secure lawyer fees, or
2. Contract with client for reasonable contingency fee in a civil case.

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29
Q

Financial Assistance/Advance to Client

A

Providing financial assistance or advances to clients creates conflict of interest between client and lawyer’s personal interest.

ABA: Lawyer shall not assist unless advancement of court costs and expenses in litigation in contingency cases, or for indigent clients.

CA: A lawyer may lend money to client for any purpose if client promises in writing to repay the loan.

30
Q

Limitation on Malpractice Liability

A

ABA: Atty may not agree to limit unless client is represented by independent counsel.
CA: Never

Lawyer cannot settle such claim unless client is represented by independent counsel.

31
Q

Duty to Communicate

A

Lawyer shall promptly inform client and consult with client regarding any decision that affects status of case and promptly respond to client communications and requests.
CA: Lawyer may delay transmission if lawyer reasonably believes client will likely react in a way that causes imminent harm to client or others.

32
Q

Scope of Representation

A

Lawyer must abide by client’s substantive decisions; Lawyer is responsible for employing legal strategy.

33
Q

Exceptions to duty of Confidentiality

A
  • Informed Consent
  • Disclosure is impliedly authorized
  • Disclosure is necessary to prevent death or substantial bodily harm
  • Disclosure is necessary to prevent client from committing crime or fraud that has resulted or is reasonably certain to result in substantial injury to the financial interests of another and the client has used lawyer’s services to do so
  • To comply with court order, rules, or statute
  • To secure legal advice about ethical compliance
  • To establish claim or defense in controversy against client
34
Q

Attorney/Client Privilege (Evidentiary Privilege)

A

Allows client to keep confidential all communication with attorney, intended to be confidential, made for the purpose of facilitating legal services. Client can refuse to testify and prevent atty from testifying.

35
Q

Attorney/Client Privilege to Corporate Client

A

Federal Common Law: applies to employees/agents if authorized by corp to make communication to the lawyer. Privilege lasts until death.
CA: Applies to employees/agents if authorized natural person to speak to lawyer. Privilege lasts until disbursement of estate.

36
Q

Exceptions to Attorney/Client Privilege

A

Does not apply if:
- Lawyer’s services were used to further crime or fraud,
- Relates to a dispute between the lawyer and client,
- Two or more parties consult on a matter of common interest and the communication is offered by one against the other,
- (CA) lawyer reasonably believes disclosure is necessary to prevent crime that would result in harm/death

37
Q

Duty to Avoid Fee Misunderstandings
Regular Fee Agreement Rules

A

ABA Fee Agreement: All fees must be reasonable considering the following factors:
1. Time limitations imposed by client or circumstances
2. Experience, reputation, and ability of lawyer,
3. Nature and length of relationship,
4. Time and labor, novelty and difficulty, and skill required,
5. Fee customarily charged, by locality for similar services
6. Likelihood that acceptance will preclude other employment
7. Amount involved and results obtained, and
8. Whether fee is fixed or contingent.

CA: Fees may not be illegal or unconscionable

38
Q

Regular Fee Agreement Contents

A
  1. State how fee was calculated
  2. State general nature of legal services, and
  3. Responsibilities of lawyer and client
39
Q

Regular Fee Agreement Writing Requirement

A

ABA: No writing required.
CA: Over $1,000 must be in writing, unless:
1. Client is corporation
2. Agreement was made during emergency
3. Client waives writing requirement
4. Service to a previous client for similar services

40
Q

Contingency Fee Agreement Rules

A

A contingency fee agreement is one in which the fee is dependent on the outcome of the case. The agreement must be:
1. In writing
2. Signed by client (CA: and attorney)
3. State method in which fee is to be determined
4. State litigation/expenses to be deducted
5. State whether the deduction will be made before or after calculation
6. CA: State that fee is negotiable (unless statutory ie: negligence v. healthcare provider)

41
Q

When are contingency fee calculations prohibited?

A

Domestic relations matter or a criminal case.

42
Q

Fee Splitting

A

ABA: Division of fees among attorneys not in the same firm may be made only if:
1. Division is proportionate to services
2. Written and signed consent from client.
3. Total fee is reasonable.

CA:
1. Lawyers enter written agreement to divide
2. Full disclosure to client signed by client
3. Fee not increased due to divide

Fee sharing with non-lawyers is not permitted

43
Q

Referral Fees

A

A reciprocal referral agreement between lawyers is permissible if it is not exclusive and the client is informed of the agreement.

44
Q

Duty of Diligence

A

ABA: Lawyer shall act with reasonable diligence and promptness in representing a client.
CA: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence.

45
Q

Duty to safekeep client’s property

A

A lawyer shall hold property of clients or third persons connected with a representation separate from the lawyer’s own property.

46
Q

Duty to safekeep client’s money

A

Lawyer has a duty to keep client’s money separate and not commingle funds. Funds must be kept in a client trust account and lawyer must keep an accounting of records.

47
Q

Duty to safekeep client’s physical property

A

A lawyer shall hold a client’s or third party’s physical property that is connected with the lawyer’s representation separate from the lawyer’s own property. Lawyer must:
1. Identify and label the property.
2. Put the property in a safe place and safeguard,
3. Maintain a journal of the property.
4. Not commingle

48
Q

Duty re Advertising

A

Advertising must not be false or misleading.

49
Q

Duty re: Solicitation

A

No direct solicitation by atty is permitted unless:
1. Free legal services
2. Towards family members
3. Clients and former clients
4. Nondeceptive letters labeled as advertisements to people known to have specific legal problem

50
Q

Unauthorized Practice of Law / Non-lawyers

A

No practice, sharing fees, or control of professional judgment with a non-lawyer.

51
Q

Liability for other lawyer’s conduct

A

A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer knowingly ratifies the conduct, or is a partner, or has direct supervisory authority over other lawyer and could have mitigated the consequences.

52
Q

Duty of Fairness

A

A lawyer has a general duty of fairness to third parties, opposing counsel, and the court.

53
Q

Duty of Fairness to represented parties

A

A lawyer shall not communicate with parties or witnesses known to be represented by another lawyer unless the other lawyer has consented, or the communication is authorized by law or court order.

54
Q

Duty of Fairness to Represented Corp/Organization

A

A lawyer must obtain consent of organization’s lawyer before speaking with:
1. One who supervises or regularly consults with lawyer, or
2. One who has authority to obligate the organization regarding matter at issue, or
3. One whose conduct in the matter may be imputed by the organization.

55
Q

Duty of Fairness to the Court

A

A lawyer shall not knowingly:
1. Make false statement of fact or law, or fail to correct same
2. Fail to disclose adverse legal authority
3. Offer evidence lawyer knows to be false
4. Lawyer who knows client intends to engage in criminal activity shall take remedial measures

56
Q

Duty of Fairness to Opposing Counsel

A

A lawyer shall NOT:
1. Unlawfully obstruct evidence
2. Falsify evidence
3. Fail to promptly notify sender of any materials inadvertently sent to lawyer
4. Knowingly disobey the court rules
5. Allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial
6. (ABA) Make frivolous discovery requests
7. (ABA) Request others to refrain from giving relevant information.
8. (CA) Pay a witness to testify
9. (CA) Advise a person to secrete himself (leave jx to avoid testimony)

57
Q

Duty of Decorum to the Tribunal

A

A lawyer shall NOT:
1. Seek to influence jurors
2. Communicate ex parte during proceedings
3. Engage in conduct intended to disrupt proceedings
4. Communicate with jurors

58
Q

Duty not to suppress evidence (CA)

A

CA prohibits lawyers from suppressing evidence that lawyer/client has a legal obligation to produce or reveal

59
Q

Duty to report ethical violations

A

ABA: A lawyer who knows that another lawyer has committed a violation of the Rules of PC that raises substantial question to honesty, truthfulness, or fitness as a lawyer shall report.
CA: Permits, but does not require reporting of others.

CA requires reporting of SELF when
1. Sued for malpractice 3 times in 12 months
2. Found civilly liable for fraud
3. Sanctioned for more than $1,000
4. Charged with Felony
5. Convicted of a serious crime
6. Disciplined in other Jx

60
Q

Duty to the public/Profession

A

Lawyer has a duty to:
1. Promote public confidence
2. Not bring or defend a frivolous claim
3. Not counsel a client to engage in criminal or fraudulent conduct
4. (CA) prohibits a lawyer from seeking, accepting, or continuing a case without probable cause for the purpose of harassing or maliciously injuring a person
5. (CA) prohibits lawyer from threatening to present criminal, admin, or disciplinary charges to obtain an unfair advantage in a civil dispute.

61
Q

Citizenship and Residency Requirements

A

A state may NOT require an applicant to the bar be a citizen of the United States. A residency requirement violates the Privileges adn Immunities Clause of the US Constitution.

62
Q

Character Requirements

A

Good morale character or “Moral turpitude” test:
Each applicant has the burden of showing they possess good moral character. Conduct that violates this include conduct contrary to justice, honest, modestly or good morals.

Constitutional limitation: Must be a nexus between the bar’s requirements for admission and the applicants fitness to practice law.

Applicants must not:
1) knowingly make a false statement of material fact. This includes reckless disregard for truth/falsity in connection with their own applications for admission.
2) fail to correct statements known to create material misapprehensions
3) Knowingly fail to respond to a LAWFUL demand for information from an admissions/disciplinary authority

63
Q

Lawyer Fraudulent Condcut

A

Must not:

  • Violate rules of Professional conduct or encourage others to do the same.
  • Commit an act that reflects adversely upon the lawyer’s truthfulness, honesty/fitness as a lawyer.
  • Engage in dishonesty, fraud, deceit or misrepresentation
  • Engage in conduct prejudicial to the administration of justice
  • Knowingly assist a judge to violate the rules
  • engage in prohibited harassment
  • engage in prohibited discrimination or retaliation
64
Q

Lawyer’s rights

A

A lawyer subject to disciplinary procedures retains basic rights to counsel and cross-examination of witnesses and the right to invoke the 5th Amendment.

65
Q

Duty to Avoid the Unauthorized Practice of Law

A

a. Practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction;

b. Assisting a person in the unauthorized practice of law (CA: Prohibits knowingly assisting); and

c. If not admitted to practice in a state:
1) Establishing or maintaining a resident office or other systematic/continuous presence in the state for the practice of law; or 2) Holding out to the public or otherwise representing that the lawyer is admitted to practice law in the state.

Limited exceptions exist for certain lawyers providing temporary legal services or services through an office with a systematic and continuous presence in the jurisdiction.

California: It is a misdemeanor for anyone to practice law in CA without being an active member of the State Bar of California.

66
Q

Intro Paragraph

A

An attorney-client relationship is formed when the client reasonably believes the relationship formed. The attorney determines the means in which to represent the client. The client determines the end. For example, the client is the only one that can accept a settlement. A lawyer has a duty of confidentiality, loyalty, fiduciary responsibility and competence to their client. They also have a duty of candor, fairness and dignity to the court, their adversary and the public. The following is an analysis of these duties with respect to…

67
Q

Non-Contingent Case fees

A

a. Non-Contingent Fee Cases: Agreements must include:
1) How the fee is calculated;
2) What services are covered; and
3) The lawyer and client duties.
4) CA: The agreement must be in writing, unless the fee is under $1,000, with a corporate client, for routine services for a regular client, or there is an emergency or other circumstances make it impractical. California also expressly permits flat fee arrangements and the charging of true retainers, provided that the client agrees in writing after disclosure that the client will not be entitled to a refund of all or part of the retainer.

68
Q

Contingent Case fees

A

Contingent Fee Cases
1) Written agreement must be signed in writing by the client and contain:
a) Method of calculating fee, including the lawyer’s percent;
b) What expenses are to be deducted from the recovery;
c) Whether the percent is taken before or after expenses; and
d) Notification of any expenses for which the client is liable regardless of outcome.
2) CA also requires the agreement to state:
a) How work not covered by the contingency fee will be paid; and
b) That the lawyer’s fees are negotiable.

69
Q

Attorney Client Relationship Formation

A

Formed when the client reasonably believes the relationship formed.

70
Q

Retainer

A

Must be in writing except 1) fee is under $1000, 2) routine services for a regular client, 3) or there is an emergency or circumstances which make it impractical.

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