Professional Responsibility Flashcards
Under the California Rules of Professional Conduct (CA RPC), can a lawyer employ a disbarred lawyer? Why or why not?
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 render legal advice to a client, make appearances on behalf of a client, appear as a representative of the client at a deposition or other discovery matter, or engage in activities that constitute the practice of law.
However - a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities.
True or False: A lawyer must serve written notice of an ineligible person’s employment upon the California State Bar and each client on whose specific matter the ineligible person will work.
True
True or False: California lawyers are specifically prohibited from, and subject to discipline for, threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.
True
Who is a lawyer prohibited from communicating with in a represented organization?
(i) a current officer, director, partner, or managing agent of the organization or (ii) a current officer, director, partner, or managing agent or other constituent of the organization if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability
How is competence defined under the CA RPC?
The application of the (i) learning and skill and (ii) mental, emotional, and physical ability reasonably necessary for the performance of the legal service.
Neither client consent nor a lack of financial harm will cure a violation of this rule.
Duty of Competence
When does a potential conflict of interest arise?
When there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client or third party.
When must a lawyer withdraw from representation?
When the representation will result in violation of the rules of professional conduct or other law.
When does a conflict of interest arise?
Under both the ABA and the California RPC, a conflict of interest arises when there is a significant risk that the representation of a client may be materially limited by the lawyer’s own personal interests.
What are the conditions for a lawyer to be able to undertake representation when there is a concurrent COI? (ABA and CA)
Lawyer can undertake representation if:
(i) the lawyer reasonably believes that they will be able to provide competent and diligent representation to the affected client
(ii) the representation is not prohibited by law
(iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal, and
(iv) the affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA)
What is the CA standard for lawyer competence?
A lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence, which requires learning and skill, and mental, emotional, and physical ability reasonably necessary for the representation.
Under the CA RPC, what does reasonable diligence mean?
That a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer
Fee splitting under CA rules
Under the CA RPC, a fee may not be shared with a lawyer from a different firm unless (i) the lawyers enter into a written agreement to divide the fee, (ii) the client consents in writing following a written disclosure that includes the identity of the lawyers or firms and the terms of the division, and (iii) the total fee charged is not increased solely by reason of the agreement to divide fees.
Fee splitting under MR
Under the MR, a lawyer may ethically divide fees with a lawyer from a different firm if (i) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation, (ii) the client agrees to the split in writing, and (iii) the total fee is reasonable.
Solicitation
Under the CA RPC, a lawyer must not solicit professional employment by live person-to-person, telephone, or real-time electronic contact when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is (i) a lawyer or (ii) a person with whom the lawyer has a familial, close personal, or prior professional relationship. The MR is generally the same but does not prohibit solicitation by real-time electronic contact. In addition, the MR specifically includes a third exception for a person who routinely uses for business purposes the type of legal services offered by the lawyer.
