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SmartBar Essay Flashcards > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Formation of Laywer-Client Relationship

High

A
  • A lawyer-client relationship is formed when: (1) a person seeks legal services from a lawyer; AND (2) the lawyer either (a) manifests consent to provide services, OR (b) fails to manifest lack of consent to do so and knows or should know that the person would reasonably rely on the lawyer to provide legal services.
  • In CA, the reasonable perception of a purported client may determine that such person deemed is a client of the lawyer.
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2
Q

Proper Scope of Lawyer-Client Relationship

High

A
  • Generally, a client controls the objectives of the representation, and makes substantive decisions (including whether to accept settlement offers or plead guilty, testify, or waive a jury trial in criminal matters). The lawyer controls the means (tactical decisions) to accomplish those objectives, BUT must consult with the client as to means by which the objectives are pursued.
  • A lawyer may limit the scope of the representation if: (1) it’s reasonable under the circumstances; AND (2) the client gives informed consent.
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3
Q

Advising or Assisting the Violation of Law

Low

A
  • A lawyer CANNOT counsel a client to engage (or assist a client) in conduct that the lawyer knows is: (a) criminal; (b) fraudulent; OR (c) [CA only] a violation of any law, rule, or ruling of a tribunal.
  • Notwithstanding the above, a lawyer may: (1) discuss the legal consequences of any proposed course of conduct with a client; and (2) counsel/assist a client to make a good faith effort to determine the validity, scope, meaning, or application of a law, [or application of a rule or ruling of a tribunal – CA only].
  • [CA only] a lawyer is permitted to advise and assist a client with complying with California laws even if such laws conflict with Federal or tribal law.
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4
Q

Duty of Competence

High

A
  • A lawyer owes his client the duty of competence, which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client.
  • Under this duty, a lawyer CANNOT take a case in an unfamiliar area of law unless he gains competence by: (a) associating with another lawyer reasonably believed to be competent; OR (b) acquiring sufficient learning and skill before performance is required.
  • In an emergency, a lawyer MAY give advice or assistance (even if the lawyer does not have the skill ordinarily required) where referral/consultation/association with another lawyer would be impractical.
  • Incompetence exposes a lawyer to: (1) discipline by the bar; (2) disqualification of the lawyer from a litigation matter; AND/OR (3) a civil malpractice lawsuit.
  • [CA only] a lawyer is only subject to discipline if he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.
  • A lawyer SHOULD keep abreast of changes in the law and its practice to maintain their requisite knowledge and skill. [CA only] A lawyer HAS A DUTY TO keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
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5
Q

Duty of Communication

High

A
  • A lawyer must keep the client reasonably informed about any significant developments relating to the representation.
  • The duty to communicate includes: (1) promptly informing the client of any situation where the client’s informed consent is required; (2) keeping the client reasonably informed on the status of the matter; (3) promptly complying with requests for information (i.e. phone calls, inquiries); (4) consulting with the client about strategy decisions and any matters requiring the client’s consent; and (5) advising the client when the lawyer knows that the client expects assistance not permitted by ethical rules.
  • All settlement offers MUST be conveyed to the client.
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6
Q

Duty of Diligence

High

A
  • A lawyer shall act with reasonable diligence and promptness in representing a client. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end.
  • The lawyer must be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer. The lawyer is not bound, however, to press for every possible advantage that might be realized for a client.
  • The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or prohibit treating all persons involved in the legal process with courtesy and respect.
  • [CA only] a lawyer CANNOT intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing the client.
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7
Q

Duty of Confidentiality

High

A
  • A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. This duty is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested that the information be kept confidential or whether the use of the information will damage the client.
  • [ABA only] A lawyer MAY disclose confidential information if: (a) the client consents; (b) the lawyer is ordered by law to do so (e.g. a court order); (c) it’s needed to defend a malpractice action or in a suit to recover legal fees; (d) to prevent death or substantial bodily harm; (e) to prevent the client from committing a crime or fraud (in which the lawyer’s services were used) that will result in substantial financial loss; OR (f) to secure legal advice about the lawyer’s compliance with ethical rules.
  • [CA only] A lawyer MAY disclose confidential information if:
    (a) The client consents.
    (b) The lawyer reasonably believes disclosure is necessary to prevent a crime that will likely result in death or substantial bodily injury to a person. Additionally, the lawyer must also satisfy two requirements before the disclosure takes place – the lawyer must: (1) first make a good faith attempt to counsel the client out of committing the crime and/or changing their course of action; and (2) inform the client of the lawyer’s ability or decision to disclose the information.
    (c) It’s needed to defend a malpractice action or in a suit to recover legal fees, OR
    (d) The lawyer is compelled by law or court order.
  • Lawyer must proceed as is reasonably necessary in the best interest of the organization. If the client is an organization, and the lawyer becomes aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer MUST refer the matter to higher authorities within the organization. After reporting up, if the authority refuses or fails to act, the lawyer MAY disclose to an outside source if it’s necessary to prevent substantial injury to the organization.
  • [CA only] Generally DOES NOT allow reporting to an outside source – a lawyer only has the right to withdraw from the representation. Lawyer must not violate the duty of confidentiality. The only exception when outside reporting is allowed is when it’s necessary to prevent death or substantial bodily harm to a person.
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8
Q

Inadvertant Disclosure of Confidential Information

Medium

A
  • A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information (including electronically stored information [ESI]) relating to the representation of a client.
  • [ABA] A lawyer who inadvertently receives a document or ESI must promptly notify the sender. This duty applies only when the lawyer knows/should know that the material was inadvertently sent.
  • [CA only] When a lawyer inadvertently/accidentally receives material that obviously appears to be confidential and privileged, the receiving lawyer must do three things: (1) refrain from examining the materials any more than is essential to ascertain whether the materials are privileged; (2) immediately notify the sender; AND (3) proceed to resolve the situation by agreement or through the court.
  • A lawyer is NOT required to return the document/materials under the ABA or CA law.
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9
Q

Duty to Safeguard Property

High

A
  • A lawyer MUST hold the property of a client or third-person that is in the lawyer’s possession separate from the lawyer’s own property.
  • All client funds (including advances of fees, costs, and expenses) MUST be kept in a separate attorney trust account. Client funds shall be withdrawn only as fees are earned or expenses incurred.
  • Funds belonging to the lawyer CANNOT be deposited into the trust account EXCEPT: (a) funds reasonably sufficient to pay bank charges; OR (b) funds belonging in part to both the client and lawyer, which must be withdrawn at the earliest reasonable time [CA only]. Unless the client consents to another place, the trust account must be located in the state of the lawyer’s office [ABA] or in California [CA].
  • Other property shall be identified as such and appropriately safeguarded.
  • Additionally, a lawyer MUST return all client property (including all documents related to the representation) to client upon the client’s request or at the end of the representation. [CA only] A lawyer CANNOT withhold a client’s case file for the purpose of getting paid.
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10
Q

Duty of Loyalty: Conflict of Interest

High

A
  • A lawyer owes his client the fiduciary duty of loyalty, which means that he must act in the client’s best interest and avoid conflicts. This duty requires that the lawyer not represent a client when a conflict of interest exists.
  • Additionally, a lawyer CANNOT engage in self-dealing OR act in his own interest rather than the client’s best interest.
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11
Q

Conflict of Interest: Current Clients

High

A
  • A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.
  • A concurrent conflict of interest exists if: (a) the representation is directly adverse to another client; OR (b) there is a significant risk that the lawyer’s representation will be materially limited due to his (i) personal interests or (ii) responsibilities to another present/former client or thirdperson.
  • However, a lawyer MAY represent a client whose interests conflict if: (1) he reasonably believes that he will be able to provide competent and diligent representation to the client; (2) the representation is not prohibited by law; (3) he’s not representing parties on opposite sides of the same litigation; AND (4) each client affected by the conflict gives informed consent (CA = informed written consent; ABA = informed consent, confirmed in writing).
  • Dual Representation – Criminal Cases: A lawyer should normally DECLINE to represent multiple defendants in a criminal case because the potential for a conflict of interest is so grave.
  • [CA] A lawyer must provide written disclosure (even if there is no significant risk that the representation will be limited) when the lawyer: (a) has (or knows that another lawyer in the firm has) a legal, business, financial, professional, or personal relationship to a party or witness in the same matter; OR (b) knows or reasonably should know that another party’s lawyer is a family member of (spouse, parent, child, sibling), lives with, or is a client of the lawyer (or another lawyer in the firm) or has an intimate personal relationship with the lawyer.
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12
Q

Conflict of Interest: Former Clients

High

A
  • A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.
  • Former Clients of the Lawyer: Unless a former client gives informed consent, a lawyer CANNOT thereafter represent another person in the same or a substantially related matter when the person’s interests are materially adverse to the interests of the former client.
  • Former Clients of the Lawyer’s Firm: Unless a former client gives informed consent, a lawyer CANNOT knowingly represent a person in the same or a substantially related matter that the lawyer’s firm had previously represented a client: (1) whose interests are materially adverse to that person; AND (2) about whom the lawyer had acquired confidential information that is material to the matter.
  • Additionally, a lawyer CANNOT use or reveal confidential information to the detriment of a former client.
  • Informed consent means: Informed written consent (CA) vs. Informed consent, confirmed in writing (ABA).
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13
Q

Conflict of Interest: Prospective Clients

Low

A
  • A lawyer CANNOT disclose confidential information received from a prospective client.
  • A lawyer CANNOT represent a client with materially adverse interests to a prospective client in the same or a substantially related matter if the lawyer received confidential information material to the matter from the prospective client.
  • Two exceptions exist to the above:
    Exception #1: If both the affected client and prospective client give informed consent (CA = informed written consent; ABA = informed consent, confirmed in writing).
    Exception #2: When the lawyer with whom the prospective client consulted is timely screened from participation in the matter AND written notice is promptly given to the prospective client.
  • [CA] A prospective client is someone who consults the lawyer for the purpose of hiring the lawyer OR securing legal services/advice. [ABA] A prospective client is someone who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter.
  • Excluded are those who communicate information: (a) unilaterally without a reasonable expectation that the lawyer is willing to be retained; (b) after the lawyer has stated an unwillingness or inability to consult [CA only]; (c) without a good faith intention to seek legal advice or representation [CA only]; (d) in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest [ABA only]; OR (e) for the purpose of disqualifying the lawyer [ABA only].
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14
Q

Conflict of Interest: Imputed Conflicts

Medium

A
  • Generally, a conflict of interest is imputed to the entire law firm, and the entire firm is disqualified from the representation.
  • However, the law firm will NOT be disqualified if: (a) the conflict is purely personal and does not materially limit the representation; OR (b) the lawyer is properly screened when: (i) the conflict arises out of association with the lawyer’s previous firm, (ii) the lawyer is timely screened and doesn’t receive a portion of the fee, (iii) written notice is given to the former client; and (iv) [CA only] the lawyer did not substantially participate in the matter at the prior firm.
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15
Q

Conflict of Interest: Former Government Lawyer

Medium

A
  • Former government lawyers (including prosecutors) who worked personally and substantially on a matter CANNOT work on that same matter at a private firm UNLESS the government agency consents in writing.
  • The conflict will NOT be imputed to the rest of the firm if: (1) the lawyer is timely screened and doesn’t receive a portion of the fee; AND (2) prompt written notice is given to the government agency.
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16
Q

Business Ownership by a Lawyer

Low

A
  • A lawyer may own and operate a business separate from the practice of law. However, the lawyer must be careful to not engage in a business that would pose a conflict of interest with his clients.
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17
Q

Business Transactions with a Client & Pecuniary Interests Adverse to the Client

High

A
  • A business transaction between a lawyer and 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.
  • This rule also applies when a lawyer knowingly acquires an ownership, possessory, security, or pecuniary interest adverse to the client.
  • This rule DOES NOT apply to: (a) ordinary fee arrangements between a client and lawyer – except when accepting an ownership interest in a client’s business or other property as full/partial payment of legal fees; (b) standard commercial transactions for products/services that the client generally markets to others; and (c) to a charging lien given to secure payment of a contingency fee [CA only].
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18
Q

Proprietary Interest in a Case

Medium

A
  • [ABA] A lawyer CANNOT acquire a proprietary interest (ownership interest) in the cause of action or subject matter of litigation the lawyer is conducting for a client UNLESS: (a) acquiring a lien authorized by law to secure the lawyer’s fee or expenses; OR (b) a contract for a contingency fee in a civil case.
  • [CA] No direct counterpart to the ABA. However, retaining liens are NOT allowed. Upon termination, the lawyer must release to the client all client materials and property (except for materials subject to a protective order, non-disclosure agreement, or statute/regulation).
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19
Q

Use of a Current Client’s Information

Medium

A
  • A lawyer CANNOT use a client’s confidential information to the disadvantage of the client UNLESS: (a) the client gives informed consent; OR (b) the use is permitted by the relevant ethical rules.
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20
Q

Gifts from a Client

Low

A
  • A lawyer CANNOT solicit a client to make a substantial gift (including a testamentary gift) to the lawyer or lawyer’s relative UNLESS the lawyer/recipient is related to the client.
  • A lawyer CANNOT prepare an instrument for the client giving the lawyer or lawyer’s relative a substantial gift UNLESS: (a) the lawyer is related to the client; OR (b) [CA only] an independent lawyer advised the client and has provided a Certificate of Independent Review. “Related/Relative” means a close family relationship.
  • A lawyer MAY accept a gift from a client subject to the general standards of fairness and absence of undue influence (i.e. a simple gift such as a holiday present or token of appreciation).
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21
Q

Acquisition of Client’s Literary/Media Rights

Low

A
  • [ABA] Prior to the conclusion of the representation, a lawyer CANNOT make/negotiate an agreement giving the lawyer literary or media rights to a portrayal or account (based in substantial part) on information relating to the representation.
  • [CA] No such rule exists.
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22
Q

Financial Assistance & Loans to Clients

High

A
  • A lawyer CANNOT provide financial assistance to a client, except in the following instances: (a) advancing litigation costs/expenses in contingency cases; (b) advancing an indigent client’s litigation expenses/costs; (c) [CA only] paying a third-party from funds collected or to be collected with consent of the client ; OR (d) [CA only] a personal loan to the client, after the lawyer is retained, with a written promise to repay by the client, and compliance with relevant ethical rules (current client conflicts rule and business transactions with client rule).
  • [ABA] Loans to clients for personal expenses are never permitted.
  • [ABA] This rule applies only in connection with pending or contemplated litigation. [CA] The rule applies in all situations.
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23
Q

Payment of Legal Fees by a Third-Party

Medium

A
  • A third-party MAY pay a client’s legal fees if: (1) the client gives informed consent ([CA] informed written consent is required); (2) there is no interference with the lawyer’s independence of professional judgment or the lawyer-client relationship; AND (3) information related to the representation remains confidential.
  • [CA] The informed written consent requirement DOES NOT apply to a lawyer rendering legal services on behalf of any public agency (or nonprofit organization) that provides legal services to the public or other public agencies.
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24
Q

Serving on the Board of a Client’s Organization

Medium

A
  • If a lawyer seeks to serve as a board member for a corporation/organization he represents, he must do so effectively AND without jeopardizing his ethical duties to the company as his client.
  • A director who is also a lawyer of the company is held to a higher standard in their knowledge of company matters.
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25
Q

Aggregate Settlement & Pleas

Low

A
  • If a lawyer represents multiple clients in a case, the lawyer MUST obtain informed written consent of each client before entering into an aggregate settlement of claims (in a civil case) OR guilty or nolo contendere pleas (in a criminal case).
  • However, this rule DOES NOT apply to class action settlements subject to court approval.
26
Q

Limiting Liability to a Client

Medium

A
  • [CA] A lawyer CANNOT contract to prospectively limit the lawyer’s liability to the client for malpractice.
  • [ABA] A contract prospectively limiting the lawyer’s liability for malpractice is permitted if the client is independently represented in making the agreement.
  • [Both ABA and CA] A lawyer CANNOT settle a claim (or potential claim) for professional malpractice liability, UNLESS the client is: (a) represented by an independent lawyer for the settlement; OR (b) advised in writing that the client may seek the advice of an independent lawyer and is given a reasonable opportunity to do so.
27
Q

Sexual Relations with Clients

High

A
  • [Both ABA and CA] A lawyer CANNOT have sexual relations with a current client UNLESS a consensual sexual relationship existed before representation.
  • [CA] a lawyer’s spouse or registered domestic partner are specifically excluded from the definition of “current client”.
  • When the client is an organization, this rule also prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs, or regularly consults with that lawyer concerning the organization’s legal matters.
  • A lawyer must comply with all other applicable ethical rules.
  • A conflict to one lawyer under this rule is NOT imputed to other lawyers in the firm.
28
Q

Organization as Client: Lawyer Represents the Organization

Medium

A
  • A lawyer employed by an organization (i.e. a corporation or LLC) represents the organization acting through its duly authorized constituents (directors, officers, employees, owners). In this situation, the lawyer must act in the best interests of the organization.
  • The lawyer representing the organization MUST explain the identity of the client when dealing with constituents that have adverse interests to the organization.
  • A lawyer MAY also represent the officers, directors, or managers of the organization individually, BUT must: (1) abide by applicable conflict of interest rules; AND (2) obtain consent to the dual representation (when such consent is required under the rules) by (a) an appropriate official of the organization – other than the person to be represented, or (b) the shareholders.
29
Q

Organization as Client: Reporting Violations

Medium

A
  • A lawyer MUST “report up” the actions of constituents within an organization under certain circumstances. Specifically, when a lawyer knows a constituent is acting in a manner that (1) violates the law or a legal obligation AND (2) that action is likely to result in substantial injury to the organization, the** lawyer must report those actions up to a higher authority in the organization** – including the highest authority if necessary.
  • However, the lawyer DOES NOT have to report up if he reasonably believes that it’s not in the best interest of the organization to do so.
  • [ABA] If the highest authority within the organization refuses to change course in a timely manner, the lawyer MAY report outside of the organization if: (1) the action or refusal to act is clearly a violation of law; AND (2) the lawyer reasonably believes the violation will result in substantial injury to the organization. When reporting outside the organization, the lawyer may only reveal confidential information to the extent necessary to prevent substantial injury.
  • However, the above ABA rule DOES NOT apply when the lawyer is hired by the organization to investigate or defend against an alleged violation of law.
  • [CA] If the highest authority within the organization refuses to change course, the lawyer CANNOT report outside of the organization, as that would violate the prohibition on sharing confidential information. The lawyer can continue to act in the best lawful interests of the organization or resign (if appropriate).
30
Q

Mandatory Withdrawal

High

A
  • A lawyer MUST withdraw from representing a client if: (a) discharged; (b) a physical or mental condition of the lawyer exists (ABA = materially impairs the representation; CA = unreasonably difficult to effectively carry out the representation); OR (c) the representation will result in a violation of an ethics rule or other law.
  • [CA] A lawyer MUST withdraw if he knows or should know that the client is bringing an action (1) without probable cause, (2) for the purpose of harassing or maliciously injuring a person.
  • Proper withdrawal requires the lawyer to: (1) provide timely notice to the client; AND (2) promptly return any unspent legal fees, advanced expenses, and all of the client’s papers and property. A lawyer CANNOT hold the client’s materials pending the payment of his fees.
  • [Both ABA and CA] A lawyer MUST obtain the court’s approval to withdraw after a lawsuit has been filed.
31
Q

Permissive Withdrawal

High

A
  • A lawyer MAY withdraw from representing a client if: (a) the client persists on a criminal or fraudulent course of action; (b) the client has used the lawyer’s services to commit a crime or fraud; (c) the client fails to substantially fulfill a obligation after reasonable warning (i.e. payment of legal fees); (d) the representation has been rendered unreasonably difficult by the client; OR (e) other good cause exists.
  • [ABA] A lawyer MAY also withdraw if: (a) the withdrawal will not materially damage the client’s interests; (b) the client insists upon taking action the lawyer deems repugnant or has a fundamental disagreement with; OR (c) the representation will result in an unreasonable financial burden on the lawyer.
  • [CA] A lawyer MAY also withdraw if: (a) the client insists on a claim, defense, position, or demand that is unwarranted and cannot be supported by a good faith argument; (b) the client freely and knowingly consents; (c) there is an inability to work with co-counsel and withdrawal is in the best interests of the client; (d) the lawyers mental or physical condition makes it difficult for effective representation; OR (e) continuing the representation will likely violate an ethical rule.
  • [Both ABA and CA] An attorney MUST obtain the court’s approval to withdraw after a lawsuit has been filed.
32
Q

Duty of Candor to the Court

High

A
  • A lawyer CANNOT engage in conduct involving dishonesty or fraud. A lawyer CANNOT knowingly: (a) make a false statement of fact or law to a tribunal; (b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; (c) fail to disclose to a tribunal controlling legal authority known to be adverse (unless disclosed by opposing counsel); OR (d) offer or use evidence that the lawyer knows to be false.
  • If a lawyer knows/learns he has offered false material evidence (including witness testimony), the lawyer MUST take reasonable remedial measures, including disclosure to the tribunal (if necessary). In CA, disclosure of confidential information is prohibited (absent consent of the client).
  • A lawyer MAY refuse to offer evidence that the lawyer reasonably believes is false EXCEPT FOR the testimony of a criminal defendant.
33
Q

Witness Perjury

High

A
  • A lawyer CANNOT call a witness that he knows will commit perjury (testify falsely). A lawyer’s knowledge that evidence is false may be inferred from the circumstances. If a lawyer later learns that a witness committed perjury, the lawyer must take reasonable remedial measures.
  • However, a defendant in a criminal case has the constitutional right to testify on his own behalf. In this situation, the lawyer should: First, try to persuade the client that the evidence should not be offered. Second, attempt to withdraw from the case (if the persuasion is ineffective). Third, if the attempt to withdraw is unsuccessful then: [ABA] The lawyer must tell the court, including disclosure of confidential information (if necessary). [CA] The** lawyer must allow the defendant to testify in a narrative fashion**. Disclosure of confidential information is prohibited (absent consent of the client).
  • If a lawyer reasonably believes (but does not know) that the testimony is false, he MAY permit or refuse to offer the testimony/proof (the lawyer has discretion).
34
Q

Ex Parte Communication with the Court

Low

A
  • A lawyer CANNOT seek to influence the Court or communicate the merits of a case without ALL parties present (ex parte), UNLESS the attorney is authorized by law to do so.
  • During an authorized ex parte proceeding, a lawyer MUST inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).
35
Q

Frivolous Claims

High

A
  • A lawyer has a duty to investigate the claims/defenses/arguments filed on behalf of a client, and CANNOT file frivolous positions with the Court. A good faith argument for an extension, modification, or reversal of existing law is NOT deemed frivolous.
  • [CA] The rule also specifically prohibits actions, defenses, positions, and appeals that lack probable cause AND are intended to harass or maliciously injure.
  • [ABA] At trial, a lawyer SHALL NOT: (a) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; (b) assert personal knowledge of facts in issue except when testifying as a witness; OR (c) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.
  • Whether a lawyer satisfied his duty to investigate the claims, defenses, and/or legal positions is measured by what a reasonable attorney would do in similar circumstances.
  • A lawyer for a defendant in a criminal proceeding (that could result in jail time) may nevertheless defend by requiring that every element of the case be established.
36
Q

Obstructing or Altering Discoverable Evidence

Medium

A
  • A lawyer CANNOT unlawfully: (a) obstruct another party’s access to evidence; OR (b) alter, destroy, or conceal a document/material with evidentiary value.
  • A lawyer also CANNOT counsel or assist another person to do any such act.
37
Q

Improper Influence

Medium

A
  • A lawyer CANNOT seek to influence a judge, juror, prospective juror, or other official by means prohibited by law.
  • Additionally, a lawyer CANNOT falsify evidence, counsel or assist a witness to testify falsely, OR offer an unlawful inducement to a witness (i.e. improper payments or causing a person to become “unavailable”).
  • A lawyer CANNOT request a person (other than a client) to refrain from voluntarily giving information to another party UNLESS: (1) the other person is a relative, employee, or other agent of the client; AND (2) the lawyer reasonably believes that silence will not adversely affect the person’s interests.
38
Q

Proper Discovery Requests & Compliance

Medium

A
  • [ABA] A lawyer MUST make a reasonably diligent effort to comply with legally proper discovery requests by an opposing party. A lawyer CANNOT make a frivolous discovery request.
  • [CA] There is no equivalent rule. A violation of a civil or criminal discovery rule or statute does not by itself establish an ethical violation.
39
Q

Payments to Witnesses

Medium

A
  • A lawyer CANNOT offer an unlawful inducement to a witness or make payments to a witness contingent upon the content of the testimony or outcome of the case.
  • However, a lawyer MAY pay a witness (unless prohibited by law) for: (a) expenses reasonably incurred (i.e. travel expenses, hotel, meals during the time that the witness is required to be present at trial); (b) reasonable compensation for loss of time; OR (c) a reasonable fee to an expert witness.
40
Q

Lawyer as Witness

Medium

A
  • A lawyer CANNOT act as trial counsel when that lawyer is likely to be a necessary witness, UNLESS: (a) the testimony relates to an uncontested issue; (b) the testimony relates to the nature and value of legal services rendered in the case; (c) [ABA only] the lawyer’s disqualification would create a substantial hardship on the client; OR (d) [CA only] the lawyer has informed written consent of the client.
  • Trial counsel is also prohibited from giving testimony at trial unless one of the above exceptions apply.
  • A lawyer MAY act as trial counsel where another lawyer in same firm is likely to be a necessary witness, unless a conflict of interest exists.
41
Q

Communication with a Represented Person

High

A
  • When a lawyer knows that a person is represented by counsel in a matter, the lawyer CANNOT speak to that person concerning the matter UNLESS: (a) the lawyer has permission from person’s lawyer – the represented person solely agreeing to speak is insufficient; (b) for communications authorized by law or a court order; OR (c) [CA only] for communications with a public official, board committee, or body.
  • Subject to the exceptions above, this rule also covers any employee or agent of an organization whose communication might bind or be imputed to the represented organization.
42
Q

Trial Publicity - Extrajudicial Statements to the Public

Medium

A
  • A lawyer participating in an investigation or litigation (i.e. prosecutor, defense counsel) CANNOT make extrajudicial statements to the public on that matter, which (1) the lawyer knows (or should know), (2) will be disseminated by means of public communication, AND (3) will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors.
  • Several exceptions exist, including statements: (1) to protect the client from substantial undue prejudice from recent publicity that was not self-initiated – the statement must be limited as is necessary to mitigate the adverse publicity; (2) of the claim, offense, defense, or identity of persons (unless prohibited by law); (3) information in a public record; (4) to inform the public of an ongoing investigation; (5) requesting assistance in obtaining evidence; (6) warning of danger when a likelihood of substantial harm exists; and (7) certain information in a criminal case – identity/residence/occupation/family-status of the accused, info necessary to apprehend the accused, fact/time/place of arrest, identity of investigating/arresting officers and agencies, and length of investigation.
  • Additionally, prosecutors MUST exercise reasonable care to prevent others under their supervision/direction from making extrajudicial statements that the prosecutor would be prohibited from making.
43
Q

Special Rules for Prosecutors

Medium

A
  • Prosecutors in criminal cases are often held to a higher standard because they have a duty to administer justice.
  • Prosecutors may only proceed with a case if probable cause exists. Probable cause exists if there are (1) sufficient facts, (2) to lead a reasonable person to believe, (3) that a crime was committed, and (4) that the defendant committed the crime.
  • Prosecutors MUST timely disclose any exculpatory or mitigating evidence (evidence that tends to negate guilt) known to the prosecutor within a sufficient time to allow the defendant to properly prepare for trial. An exception exists when a protective order of the court relieves the prosecutor of this responsibility.
  • Prosecutors must make reasonable efforts to assure that the accused has been advised of the right to (and procedure for obtaining) counsel, and has been given reasonable opportunity to obtain counsel.
  • Prosecutors CANNOT seek to obtain from an unrepresented accused a waiver of important pretrial rights (i.e. the right to a preliminary hearing).
  • A prosecutor MUST seek to remedy a conviction when he knows of clear and convincing evidence establishing that a convicted defendant did not commit the crime.
  • A prosecutor MUST promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the crime. If the conviction was obtained in the prosecutor’s jurisdiction, the prosecutor MUST make reasonable efforts to cause an investigation to determine if the defendant was wrongly convicted.
44
Q

Threat of Criminal, Administrative, or Disciplinary Charges

Medium

A
  • [CA] A lawyer CANNOT threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
  • This rule DOES NOT apply to: (a) a threat to bring a civil action; (b) actually bringing such charges; (c) stating that the lawyer will pursue all available remedies; OR (d) a threat to initiate a contempt proceeding for failing to comply with a court order.
  • [ABA] No equivalent rule.
45
Q

Amount of Lawyer’s Fees

High

A
  • [ABA] A lawyer’s fee must be reasonable.
  • [CA] The fee cannot be unconscionable or illegal. “Unconscionability” has been described by the California Supreme Court as a fee that is so exorbitant and wholly disproportionate to the to the services performed as to shock the conscience.
  • Factors to determine whether the fee is ethical include: the time, skill, experience, degree of specialty, and difficulty required for the task; preclusion of other employment; amount and whether the fee is fixed/contingent; relationship with the client; services performed and results obtained; and whether the lawyer engaged in wrongdoing (fraud, overreaching, failure to disclose).
46
Q

General Fee Agreements

High

A
  • [ABA] General fee agreements are NOT required to be in writing (except for contingency fee arrangements). However, the ABA requires that the fee be communicated to the client (a writing is encouraged, but not required).
  • [CA] ALL fee agreements must be in writing UNLESS: (a) the fee to be charged is $1,000 or less; (b) the work is routine work for a regular client; (c) the client is a corporation; (d) the client states in writing, after full disclosure, that a written fee agreement is not required; (e) an emergency to avoid foreseeable prejudice to the client’s rights/interests; OR (f) circumstances making a written agreement impractical.
  • [CA] Fee agreements MUST include: (1) how compensation is calculated; (2) the nature of legal services to be provided; AND (3) the responsibilities of the lawyer and client.
47
Q

Contingency Fee Agreements

High

A
  • A contingency fee agreement is an agreement between the lawyer and client, stating that the lawyer’s fees will be paid out of any recovery the client receives.
  • Requirements:
    A contingency fee agreement** MUST**: (1) be in a writing signed by the client; AND (2) include (i) the percentage of recovery the lawyer will take, (ii) the expenses that will be deducted from recovery, and (iii) whether the lawyer’s percentage is taken out before or after expenses.
    [CA] the writing must also include: (3) how work or expenses not covered by the contingency fee will be charged; AND (4) that the fee is not set by law and is negotiable.
  • When Prohibited: ABA and CA prohibit contingency agreements for: (i) domestic relations matters when payment is contingent upon securing a divorce or upon the amount of alimony/support/property settlement obtained – but contingency fees for recovery of post-judgment balances is allowed; and (ii) representing a criminal defendant.
  • Reasonable Fee:
    Failure to comply with these rules renders the agreement voidable at the option of the client, but the** lawyer will still be entitled to collect a reasonable fee**. A lawyer is also entitled to a reasonable fee when: (a) there is a division of contingent fees between successive lawyers (i.e. a contingency fee lawyer has withdrawn with good cause OR is discharged by a client prior to deriving a recovery, and there is a later recovery); OR (b) a disqualified lawyer may be entitled to recovery for services performed prior to their removal under the unjust enrichment doctrine. The lawyer has the burden of proof to establish the reasonable fee.
48
Q

Advance Payment & True Retainers

Low

A
  • A lawyer** MAY require advance payment of a fee from a client** (commonly mislabeled as a “retainer”), BUT is obliged to return any unearned portion.
  • [CA] A lawyer MAY charge a non-refundable “true retainer”, but ONLY IF the client agrees in writing after disclosure that the fee is non-refundable. A true retainer is a fee paid to the lawyer to ensure the lawyer’s availability, but not as compensation for legal services.
49
Q

Fee Division Among Lawyers

Medium

A
  • A lawyer MAY generally share fees with other lawyers inside of the firm.
  • [ABA] Fees CANNOT be shared with lawyers outside of the firm UNLESS: (1) the total fee is reasonable; (2) the client agrees (including the share of each lawyer) and the agreement is confirmed in writing; AND (3) the division is proportional to the work done by each lawyer, unless each is jointly responsible.
  • [CA] “Pure referral fees” ARE ALLOWED – meaning that fees can be shared with a lawyer outside the firm without requiring that referring lawyer’s continued involvement in the matter. However, the following is** required in order to share fees with a lawyer outside of the firm**: (1) the lawyers enter into a written division agreement; (2) the client consents in writing after full written disclosure; AND (3) the total fee is not increased by virtue of the fee division agreement.
50
Q

Sharing Legal Fees with Non-Lawyers

High

A
  • A lawyer or law firm CANNOT share legal fees with a non-lawyer (including referral fees), except for: (a) death benefits paid to the deceased lawyer’s estate or heirs; (b) payments to a lawyer’s estate/representative for the purchase of the lawyer’s practice; (c) compensation or retirement plan payments to non-lawyer employees – even if the plan is based on profit-sharing; (d) court-awarded legal fees shared with a non-profit organization that employed, retained, or recommended the lawyer; (e) [CA only] a lawyer referral service operated in accordance with California’s minimum standards ; OR (f) [CA only] non-court-awarded legal fees shared with a non-profit organization.
51
Q

Communications Concerning a Lawyer’s Services

Low

A
  • A lawyer CANNOT make a false or misleading communication about the lawyer or the lawyer’s services.
  • A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law; OR (b) omits a fact necessary to make the statement not materially misleading.
52
Q

Advertising Legal Services

Medium

A
  • An advertisement for legal services is permitted in all formats if it: (1) is not false or misleading; (2) identifies at least one lawyer or law firm responsible for its content; (3) does not state/imply that the lawyer is certified as a specialist in a particular field of law, unless the lawyer is certified as such by an appropriate entity; AND (4) [CA only] clearly includes the word “Advertisement”, unless it’s apparent that the communication is an advertisement.
  • A lawyer is generally permitted to state that the lawyer “concentrates in,” is a “specialist,” practices a “specialty,” or “specializes in” particular fields of law.
53
Q

Solicitation of Clients

High

A
  • A lawyer or his agent CANNOT solicit a person by in-person, live telephone, or real-time electronic contact for professional employment when a significant motive is for pecuniary gain UNLESS the person: (a) is a lawyer; (b) has a family, close personal, or prior business/professional relationship with the lawyer/law firm; OR (c) [ABA only] routinely uses the type of legal services offered for business purposes.
  • Real-time electronic contact DOES NOT include chat rooms, text messages, or other written communications that recipients may easily disregard (i.e. email).
  • Additionally, a lawyer CANNOT solicit a person when: (a) said person has told the lawyer to not solicit; OR (b) if it involves coercion, duress, harassment, or [intrusion - CA only].
54
Q

Compensation for Recommending Lawyer’s Services

High

A
  • A lawyer CANNOT compensate a person for recommending the lawyer’s services.
  • However, a lawyer MAY: (a) pay the reasonable costs of permitted advertisements/communications; (b) pay the usual charges of a legal service plan or approved lawyer referral service; (c) pay for a law practice; OR (d) give nominal gifts as an expression of appreciation not intended/expected to be compensation for recommending the lawyer’s services.
  • Additionally, a lawyer MAY refer clients to another lawyer (or a nonlawyer professional) pursuant to an agreement (not otherwise prohibited) that provides for the other person to refer clients or customers to the lawyer, if: (1) the reciprocal referral agreement is not exclusive; AND (2) the client is informed of the existence and nature of the agreement.
55
Q

Professional Independence of a Lawyer

Medium

A
  • A lawyer MAY enter into business deals with a non-lawyer. However, a non-lawyer CANNOT be a partner, owner, director, or officer in a business that involves the practice of law. If a lawyer does so, it’s an ethical violation.
  • Additionally, a lawyer CANNOT permit a person who pays, employs, or recommends the lawyer to: (a) direct/regulate the lawyer’s professional judgment with respect to the practice of law; OR (b) interfere the with the lawyer-client relationship.
56
Q

Unauthorized Practice of Law

Medium

A
  • A lawyer CANNOT practice law in a state/jurisdiction where that lawyer is not admitted to practice law. Additionally, lawyer CANNOT assist a person in the unauthorized practice of law. Practice of law means doing things that call for the professional judgement of a lawyer.
  • A lawyer not admitted to practice law in the state CANNOT: (a) have an office or systematic/continuous presence in such state for the practice of law; OR (b) hold out to the public that the lawyer is admitted to practice law in the state.
  • [CA] Certain exceptions to the above rules exist, including for: counsel pro hac vice, appearances by military counsel, certified law students, out-of-state attorney arbitration counsel program, registered foreign legal consultant, registered legal services lawyers, registered in-house counsel, lawyers practicing temporarily in California as part of litigation, and non-litigating lawyers temporarily in California to provide legal services.
57
Q

Responsibilities Regarding Non-Lawyer Assistants

High

A
  • A non-lawyer MAY work under the direct supervision of a practicing lawyer who is licensed in that jurisdiction. Supervising lawyers and partners must make reasonable efforts that a non-lawyer’s conduct is compatible with the lawyer’s obligations.
  • A lawyer MUST give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment (particularly regarding the obligation not to disclose confidential client information). A lawyer is responsible for an assistant’s work product.
  • Additionally, a lawyer CANNOT assist a person in the unauthorized practice of law.
  • A lawyer is responsible for a non-lawyer’s ethical violation if the lawyer: (a) orders the conduct; (b) ratifies the conduct with knowledge of the specific conduct involved; OR (c) knows the employee’s conduct at a time when its consequences can be avoided, fails to take reasonable remedial action, and has managerial authority of the law firm or direct supervisory authority over the person.
58
Q

Employment of Disbarred, Suspended, Resigned, or Involuntary Active Lawyer

Medium

A
  • [CA] A lawyer CANNOT employ or associate with a disbarred, suspended, resigned (in face of pending discipline), or involuntary active lawyer for any activity that constitutes the practice of law, including: rendering legal advice, court appearances, representing a client at a deposition or discovery matter, negotiate/transact client matters with third-parties, and handling client funds.
  • But, a lawyer MAY hire such person for other specific activities with: (1) notification to the State Bar; AND (2) with written notice to each client that the person will perform work for. The allowed activities are: (i) preparatory legal work (legal research, drafting documents, data/info assembly); (ii) communication for scheduling, billing, updates, and sending/confirming receipt of messages; and (iii) clerical assistance to an active lawyer at a deposition/discovery matter.
  • Such notice is NOT REQUIRED for non-legal “support activities,” such as physical maintenance, delivery services, catering, reception, and typing/transcription.
  • [ABA] There is no equivalent rule. However, a lawyer cannot assist a person in the unauthorized practice of law.
59
Q

Professional Misonduct

Medium

A
  • It is professional misconduct for a lawyer to: (1) violate ethical rules; (2) commit a criminal act that reflects adversely on the honesty, trustworthiness, or fitness as a lawyer; (3) engage in conduct involving dishonesty, fraud, deceit, or misrepresentation; (4) engage in conduct that is prejudicial to the administration of justice; (5) state/imply an ability to improperly influence a government agency or official; AND/OR (6) knowingly assist a judge or judicial officer in a violation of ethical rules or other law.
  • [ABA] An “attempt” to violate an ethical rule is also deemed misconduct.
60
Q

Responsibilities of a Subordinate Lawyer

Low

A
  • A lawyer is bound by the Rules of Professional Conduct notwithstanding that the lawyer acted at the direction of another person (including a supervising lawyer).
  • However, a subordinate lawyer DOES NOT violate the ethical rules if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
  • A lawyer is not relieved of responsibility for a violation by the fact that the lawyer acted at the direction of a supervisor. HOWEVER, that fact may be relevant in determining whether a lawyer had the knowledge required to be a violation of the Rules (e.g. if a subordinate filed a frivolous pleading at the direction of a supervisor, the subordinate would not be guilty of a professional violation unless the subordinate knew of the document’s frivolous character).
61
Q

Reporting Professional Misconduct

Medium

A
  • [ABA] A lawyer MUST report another lawyer or judge when (1) the lawyer knows, (2) the other lawyer/judge violated the ethical rules, (3) that raises a substantial question, (4) as to their honesty, trustworthiness, or fitness as a lawyer/judge.
  • [CA] A lawyer is NOT required to report known violations. However, a lawyer MUST self-report if: (1) charged with a felony; (2) convicted of a serious crime; (3) found civilly liable for fraud/misrepresentation/breach of fiduciary duty/gross negligence committed in a professional capacity; (4) disciplined; (5) sanctioned $1,000 or more, except for discovery sanctions; (6) sued for malpractice three or more times within a year; OR (7) a court judgment is based upon misconduct, grossly incompetent representation, or willful misrepresentation of the lawyer.

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