Professional Responsibility Flashcards

Question

Duty of Confidentiality and Privilege

Answer 1

Can’t reveal information unless client consents or other exception applies Can’t use information to client’s disadvantage Must take reasonable measures to prevent access or disclosure

Answer 2

Applies to consultations with prospective clients Continues after relationship ends, even after client dies

Answer 3

Always permissive, and only convey what is reasonably necessary Consent, or implied authority To prevent death or substantial bodily harm CA: take precautions Talk client out of it, then warn client unless unreasonable Prevent or rectify substantial financial loss (ABA only) Defend self or establish claim against client Seek ethics opinion Address conflicts (routine conflict checks) Comply with court order, law, or other ethics rule Should first try to challenge, narrow, or seek appellate review, etc.

Answer 4

As your Evidence materials discuss, the attorney-client privilege allows a client to refuse to testify and prevent their lawyer from testifying before a court or other government tribunal about confidential communications between them or their respective agents. Applies to LEGAL SERVICES communications Attaches to prospective clients and continues after representation ends CA: Ends when client dies and estate rep discharged

Answer 5

AC privilege is much narrower Prevents testimony only Confidentiality prevents all disclosures Covers lawyer-client communications only and agents Confidentiality covers all sorts of communications

Answer 6

Services used for crime or fraud Client otherwise puts the legal services at issue in the case In civil litigation between multiple persons who were formerly the joint clients of the lawyer In certain situations where the lawyer is called to give evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer CA: When disclosure is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death (also in confidentiality)

Answer 7

Owe a duty of loyalty to each client, zealous and uncompromised Look out for personal or outside interests Three types: Unconsentable Resolved with consent Look like conflicts but not

Answer 8

disqualification discipline civil liability

Answer 9

Generally, if lawyer disqualified then others at firm also disqualified Exceptions: Uniquely personal conflicts Certain conflicts that allow disqualified lawyer to be screened off Can be waived by prospective clients

Answer 10

Representing one client directly adverse to another client Significant risk of material limitation by lawyers own interests, duty to other client, or 3P

Answer 11

If there is a conflict as described above, the lawyer may still undertake the representation if the following 4 conditions are all satisfied: Lawyer reasonably believes they can competently and diligently represent client Not prohibited by law Lawyer not on both sides of same litigation Affected clients give informed consent, confirmed in writing CA: Informed written consent

Answer 12

Can’t represent client directly adverse to another There is a direct adversity conflict even if the lawyer represents the clients in totally unrelated matters. The main examples of direct adversity are: ---A lawyer represents multiple clients in the same matter, and their interests are in actual conflict ---A lawyer accepts representation of a client who is an adverse party in a different matter the lawyer or firm is handling for an existing client. ---A lawyer accepts representation of a client in a matter adverse to an existing client of the lawyer or firm. ------Mere economic adversity (competitive companies) not enough As part of representing a client, a lawyer must not conduct a harmful or embarrassing cross-examination of another existing client of the lawyer or firm. Note, about parties not positions

Answer 13

CA: Under California law, a lawyer who is retained by an insurance company to represent an insured also represents the insurance company for conflicts purposes. Thus, the lawyer must not file a direct action against that same insurer in an unrelated case without the insurer’s consent. However, by statute, the lawyer has no duty of loyalty to the insurer when the insurer’s interest in each matter is only as an indemnity provider and not as a direct party to the action.

Answer 14

A lawyer generally must not represent a client if there is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person (unless the conflict is properly waived by the affected client(s)) CA: Always requires written disclosure of certain relationships

Answer 15

Not allowed unless all conditions met: Terms fair to client Terms and lawyer’s role fully disclosed in understandable way Client advised in writing to get independent advice Client gives informed consent in signed writing

Answer 16

Can’t use confidential information to client’s disadvantage without consent or confidentiality exception

Answer 17

Can’t solicit or prepare instrument when gift recipient is self or relative Exception: Client related to gift recipient

Answer 18

No financial assistance in connection with litigation, Except Advancing court costs and litigation expenses Paying indigent client’s court costs and litigation expenses outright When acting pro bono for indigent client, modest gifts for living expenses

Answer 19

Can advance or pay any type of expense Can’t promise to help potential clients Can lend money for any purpose if client gives written promise to repay With client’s consent, can pay client’s expense to third party from funds collected in case

Answer 20

Must fully disclose everything to each client and obtain informed consent in signed writing

Answer 21

A lawyer must not accept compensation for representing a client from someone other than the client unless: (1) the client gives informed consent; (2) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and (3) confidential information relating to the representation of the client is protected.

Answer 22

CA: California rule requires the standard informed written consent. The California rule also provides that disclosure and consent are not required at all if: (1) nondisclosure or the compensation is otherwise authorized by court order; or (2) the lawyer is rendering legal services on behalf of a public agency or nonprofit organization that provides legal services to the public. The rule also notes that in emergency situations, the lawyer can obtain the client’s consent after the fact.

Answer 23

Must advise client in writing that independent counsel is desirable and give them a chance to retain They don’t have to

Answer 24

Prohibited unless client independently represented in agreement CA: Always prohibited

Answer 25

Prohibited until matter is entirely complete (gone through any possible appeal) Discouraged unless judge is satisfied and client fully consents CA: Not prohibited, treat as a business transaction with the client

Answer 26

In connection with a probate, foreclosure, receiver’s, trustee’s, or judicial sale, the California Rules provide that a lawyer must not do either of the following: ---Directly or indirectly purchase property in an action or proceeding in which such lawyer—or any other lawyer with whom the lawyer is personally or professionally affiliated—is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator ---Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm, or an employee of the lawyer or the firm However, this rule does not prohibit a lawyer from participating in transactions that are authorized by and comply with the Probate Code

Answer 27

A lawyer must not have a sexual relationship with a client (even if the client consents and even if the representation won’t be affected) unless the sexual relationship pre-dates the lawyer-client relationship.

Answer 28

Applies to anyone who supervises or consults with the lawyer

Answer 29

All of the other specific conflicts discussed above are imputed to other lawyers in the disqualified lawyer’s firm. However, a conflict created by a sexual relationship is personal in nature and unlike most conflicts, it is not imputed to the lawyer’s colleagues.

Answer 30

Even where the sexual relationship predated the lawyer-client relationship, the lawyer should consider whether the sexual relationship will “materially limit” the lawyer-client relationship and implicate the general conflict of interest rule for current clients

Answer 31

Adds exception for marriage/domestic partnership with client

Answer 32

Can’t use confidential information to former client’s disadvantage without consent or confidentiality exception

Answer 33

Can’t represent new client adverse to former client in same or substantially related manner Without consent in writing from former client Substantially Related: Same transaction or dispute Substantial risk that information likely obtained in prior representation would materially advance new client’s position

Answer 34

Prohibited without consent if lawyer actually acquired material confidential information at former firm

Answer 35

If lawyer’s conflict comes from association with former firm, others at new firm won’t be disqualified if: Disqualified lawyer screened Disqualified lawyer doesn’t share in fee Former client given notice CA: Limits screening if disqualified lawyer substantially participated in a matter

Answer 36

Remaining lawyers can oppose former client unless: Same or substantially related matter and At least one remaining lawyer has material confidential information

Answer 37

Person who consults with lawyer in good faith about possibility of relationship After consultation, can’t represent client against prospective client in same or substantially related matter if information could significantly harm prospective client CA: Any material information creates conflict How to Waive: Both new and prospective clients must consent in writing

Answer 38

Others at firm not disqualified if disqualified lawyer: Demonstrate that the disqualified lawyer took care to avoid exposure to more confidential information that was necessary to determine whether to represent the prospective client, Demonstrate that the disqualified lawyer is timely screened from the matter and will not share in the fee, and Give written notice to the prospective client

Answer 39

Gets rid of “same or substantially related matter” with respect to conflicts What triggers most of these conflicts is “personal and substantial involvement” in the same matter Government Work to Private Sector Private Work to Government Work Prior Involvement as Judge, Law Clerk, or Third Party Neutral Government Employee or Third-Party Neutral Negotiating for Private Employment

Answer 40

Can’t represent private client if personally and substantially involved in same matter while in government service, unless government agency consents in writing Imputation and Screening Imputation to others at the firm will be cured if: (1) the disqualified lawyer is screened from the matter and does not share in the fee, and (2) written notice is given to the government agency to ensure compliance.

Answer 41

After obtaining confidential governmental information about a person, can’t represent private client adverse to that person if information could be used against them Not publicly available, under government authority Imputation cured with screening

Answer 42

After personally and substantially working on matter in private practice, can’t work on same matter for government without government employers consent

Answer 43

A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, Unless all parties to the proceedings give informed consent, confirmed in writing. Imputation cured with screening and written notice to parties and tribunal CA: Screening of prior mediator or settlement judge won’t work

Answer 44

Lawyer working on matter in these roles can’t negotiate for private employment with parties or attorneys Exception: Law clerks

Answer 45

Must be reasonable CA: Must not charge illegal or unconscionable fees

Answer 46

Ordinarily, “double billing” is considered unreasonable and dishonest. (same work, two clients) California allows double billing if: (1) the fee charged to each is “not unconscionable”; (2) the lawyer clearly disclosed the billing practice at the outset of the relationship; and (3) the lawyer obtained both clients’ consent.

Answer 47

Before or within reasonable time after starting representation, must communicate basis or rate Exception: regularly represented client CA: Requires written fee agreement if fee will exceed $1,000 unless: Client is corporation Client states in writing that they don’t want a written fee agreement Client receiving same legal services as before Emergency Impractical

Answer 48

Payment for legal services that haven't been rendered yet; must be refunded if unearned

Answer 49

Payment to ensure lawyer is available; need not be refunded

Answer 50

CA: Can’t call fee “nonrefundable” unless true retainer and client agrees in writing

Answer 51

Allowed but watch for business transaction rules

Answer 52

Fee that is dependent on outcome of matter California law specifically limits the amount of contingent fee agreements in medical malpractice cases. The exact limits are beyond the scope of the bar exam.

Answer 53

All contingent fee agreements must be in writing and signed by the client, and Must disclose: ---How fee will be calculated ---CA: That lawyer’s amount is negotiable and not set by law ---Expenses that will be deducted ---Whether expenses will be deducted before or after fee ---Expenses client will pay regardless of outcome ---CA: How client will be charged for work not covered by contingency ---Can still recover fees for work after client wins even if discharged before trial Prohibited when: Criminal cases Domestic relationship cases (but not collection cases)

Answer 54

Client money goes into trust account Commingling prohibited, but lawyer can pay bank service charges Interest goes to client, or to state Bar from pooled client trust account

Answer 55

Label non-monetary property and put in safe place Promptly notify client or third person upon receipt of property, and promptly deliver property they are entitled to

Answer 56

Must be kept separate until dispute is resolved Ie. 30k win, 10k to you but client says 5k Can transfer 20k to client, 5k to self, keep 5k separate until dispute resolved

Answer 57

Splitting legal fees with other lawyers in firm is allowed Splitting fees with outside lawyers: Allowed if: Total fee is reasonable and not increased due to split Either (1) split in proportion to each lawyer’s services or (2) each lawyer assumes joint responsibility CA: Does not apply Client agrees in writing that discloses each lawyer’s share

Answer 58

Prohibited Except: Paying a death benefit to a dead lawyer’s estate or other designated persons Purchasing a law practice of a dead, disabled, or disappeared lawyer and paying the purchase price to the estate or nonlawyer representatives Including nonlawyer employees in a compensation or retirement plan, even if the plan is funded by legal fees Sharing court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter

Answer 59

No false statements of fact or law Correct prior false statements In ex parte proceeding, disclose all material facts Overrides general rule of not needing to disclose harmful facts about the case Disclose controlling legal authority if directly adverse and opponent hasn’t done so

Answer 60

Must refuse to offer evidence known to be false May refuse to offer evidence reasonably believed (but not known) to be false Reasonable Remedial Measures

Answer 61

If evidence found to be false later, must: ---Urge client to withdraw or correct ---Seek to withdraw or strike evidence ---If all else fails, tell judge CA: can’t disclose confidential information

Answer 62

Fifth Amendment constitutional right to testify and a Sixth Amendment right to the effective assistance of counsel

Answer 63

if the client is a criminal defendant and the lawyer knows that the client intends to testify falsely (or has already done so), the lawyer must take measures similar to the “reasonable remedial measures” above: (1) try to persuade the client not to testify falsely or to recant the false testimony; (2) consider withdrawal; and (3) if all else fails, reveal the situation to the judge.

Answer 64

(1) try to persuade the client not to testify falsely or to recant the false testimony; (2) consider withdrawal; and (3) The lawyer may offer the defendant’s testimony in a narrative form if the lawyer (a) has made reasonable efforts to dissuade the client from testifying falsely and (b) has unsuccessfully sought permission to withdraw. Offering testimony in a narrative form means that the defense lawyer questions the defendant in the ordinary way up to the point of the false testimony. At that point, the defense lawyer asks a question that calls for a narrative answer (such as “What else happened?”). The defendant then tells their story. The defense lawyer is not permitted to rely on the false parts of the story when arguing the case to the trier of fact.

Answer 65

These duties of candor (correcting false statements; rectifying false evidence) continue until the end of the proceedings: when a final judgment has been affirmed on appeal or the time for appeal has expired.

Answer 66

Prohibited, but defense lawyer in criminal case can make prosecutor prove every element

Answer 67

Must make reasonable efforts to expedite litigation CA: prohibits using means with no other purpose than to delay

Answer 68

No improper means to sway members of tribunal No gifts etc.

Answer 69

Contact generally prohibited except through court order

Answer 70

Can’t be an advocate in a trial where lawyer is a necessary witness Permitted when: The trial lawyer’s testimony will relate solely to an uncontested issue; The trial lawyer’s testimony will relate solely to the nature and value of legal services they have rendered in the case; or Withdrawal would cause substantial hardship to the client ---CA: No substantial hardship ground, but conflict waivable with client’s informed written consent Note, however, that the lawyer may generally proceed as trial counsel if other lawyers at their firm are likely to be witnesses (there is no imputed disqualification).

Answer 71

A lawyer must not engage in conduct intended to disrupt a tribunal. This rule applies in depositions as well as in the courtroom. CA: The California Rules do not include the above rule due to concerns that it is too broad and would not be interpreted in a consistent manner.

Answer 72

During a trial, a lawyer must not: Assert personal knowledge of facts Refer to inadmissible material State a personal opinion about the justness of a cause, the culpability of a civil litigant, or the guilt or innocence of an accused CA: The California rule does not include the prohibition on referencing inadmissible material at trial. Additionally, the California rule only prohibits statements of personal opinion concerning the guilt or innocence of an accused.

Answer 73

Can’t obstruct, alter, or conceal evidence Difference between INFORMATION and physical evidence CA: The California rule also specifically prohibits a lawyer from: Suppressing evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or produce Advising a person to hide or to flee the jurisdiction for the purpose of making that person unavailable as a witness

Answer 74

Following are permitted but can’t be contingent on content or outcome: Reasonable expenses Loss of time Expert fees

Answer 75

DO NOT: Abuse discovery procedures Violate a court rule or order Use threats to gain advantage in a civil case Can’t threaten criminal administrative, or disciplinary charges to gain advantage

Answer 76

Prosecute only with probable cause Respect right to counsel Protect important pretrial rights Timely disclose mitigating evidence Disclose new, credible, and material evidence of innocence following conviction

Answer 77

Can’t make public statements that would materially prejudice case Right of Reply The lawyer is permitted to make a public statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client.

Answer 78

No false statements of material fact Must disclose facts to avoid assisting client in crime or fraud, subject to confidentiality

Answer 79

Can’t speak about matter unless either: Person’s counsel consents Authorized by law or court order Note that this rule does not prohibit: (1) conversations on topics unrelated to the matter; or (2) communications between the parties (and the lawyer can advise their client on such communications). CA: The California rule does not prohibit a lawyer from communicating with a public official or public entity.

Answer 80

Can’t act disinterested Must make role clear in the matter If person and client have conflicting interests, can’t give person legal advice

Answer 81

Must clarify non-attorney role

Answer 82

The lawyer must disclose that the appearance is in a representative capacity (but need not disclose the client’s identity). Additionally, the lawyer must generally act as if they were in front of a court (for example, they must not offer false evidence, make false statements, attempt to improperly influence the decision-makers, obstruct access to evidence, and so forth).

Answer 83

Notify sender CA: Applies only to privileged writing or work product Also requires lawyer to stop reading If a document was sent intentionally, the receiving lawyer is free to mine the metadata.

Answer 84

In representing a client, a lawyer must not use means that have no substantial purpose other than to embarrass, delay, or burden a third person. Additionally, a lawyer must not use methods of obtaining evidence that violate a third person’s legal rights (for example, attorney-client privilege). CA: Not in CA

Answer 85

No false or misleading statements in advertising Including important omissions or misrepresentations CA: A communication that states or implies that the lawyer is able to provide legal services in a language other than English, unless: (1) the lawyer can actually provide legal services in that language, or (2) the communication also states, in the language of the communication, the employment title of the person in the firm who speaks that language

Answer 86

The California Business and Professions Code specifically prohibits advertisements that contain any of the following: A guarantee or warranty of the outcome of a case (to avoid a violation, a lawyer should always include a disclaimer that the advertisement is not a guarantee or warranty) Words or symbols that suggest quick cash or a quick settlement An impersonation of a lawyer or client without disclosing that it is an impersonation A dramatization of an accident or other event without disclosing that it is a dramatization A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs (if that is the arrangement) Although there is no specific ABA counterpart, these advertisements would likely also be considered misleading under the ABA Rules. No need to memorize just understand

Answer 87

Can’t claim to be certified specialist unless: Certified by approved organization and Name of certifying organization clearly identified

Answer 88

Every communication about a lawyer or a lawyer’s services must identify the name and contact information of at least one lawyer or law firm responsible for its content.

Answer 89

Prohibited when significant motive is pecuniary gain Pro bono can solicit all they want in person Real time auditory or visual communications count CA: The California rule is the same with respect to in-person and live telephone contact, but more broadly prohibits “real-time electronic contact.” Thus, text messages and chat room messages might be prohibited in California even if there is no real-time video or audio component (but there is no definitive guidance on this point).

Answer 90

Other lawyers Relatives, friends, current and former clients Routine business users of services

Answer 91

Generally permitted if truthful CA: targeted communications must include the word “Advertisement,” or words of similar import, on the outside envelope (if any) and at the beginning and end of any recorded or electronic communication Unless lawyer or clearly advertisement

Answer 92

A lawyer is prohibited from soliciting professional employment, regardless of what method is used or who the target is, if: (1) the target has made known to the lawyer that they do not want to be solicited by the lawyer; or (2) the solicitation involves coercion, duress, or harassment.

Answer 93

Same rules as personal lawyer as if were the lawyer

Answer 94

A lawyer is permitted to participate in a prepaid or group legal service plan that uses personal contacts to enroll memberships for the plan, as long as the plan only contacts persons who are not known to need legal services in a particular matter covered by the plan (otherwise, this would be prohibited solicitation).

Answer 95

Generally prohibited Except: Tokens of appreciation Reciprocal referral arrangements, if non-exclusive and client is informed Paying costs of advertising, legal service plan, etc

Answer 96

Can’t engage or assist in unauthorized practice of law Can delegate with supervision (paralegals) CA: Employment of Disbarred, Suspended, Resigned, or Voluntarily Inactive Lawyer In addition to the prohibition on assisting with unauthorized practice (above), an active California lawyer must comply with various requirements upon engaging the services of a disbarred, suspended, resigned, or voluntarily inactive lawyer (“ineligible person”). Get list

Answer 97

Can practice only where licensed with limited exceptions: The lawyer associates with an active local lawyer. The lawyer obtains “pro hac vice” admission for a particular litigation matter. The temporary practice reasonably relates to the lawyer’s home state practice and pro hac vice admission is not required for such practice.

Answer 98

The following are prohibited: Forming partnership with nonlawyer that involves law practice Letting nonlawyer lead or control law firm Letting nonlawyer affect personal judgment

Answer 99

May be subject to ethics rules when providing these services in conjunction with legal services Must be transparent with no A-C privilege CA: California does not have a rule for law-related services.

Answer 100

Noncompete agreements and restrictive settlement agreements generally prohibited

Answer 101

Not responsible for following supervisor’s reasonable resolution of arguable ethics question Responsible for clear violation

Answer 102

Responsible for another’s violation if they ordered it, ratified it, or failed to mitigate it Duty to train so comport with professional obligations

Answer 103

Must generally report another lawyer’s or judges known and substantial violation (exceptions for confidential information and lawyer’s assistance programs) CA: No duty to report others but must self-report certain matters Can’t try to prevent person from making report