Professional Responsibility Flashcards
Grounds for mandatory withdrawal of L/C relationship
Ethical rule violation
Lawyer’s health
Fired by client
[CA] No probable cause
[CA] Purpose of suit is harassment
Grounds for permissive withdrawal of L/C relationship
Crime/fraud
Client doesn’t pay
Client bad conduct
[ABA] unreasonable financial burden
[ABA] Client insists on repugnant course of action that lawyer fundamentally disagrees with
[CA] Inability to work with co-counsel
[CA] unwarranted claim
Termination responsibilities
Must give client: 1) reasonable notice, 2) time to find other counsel, 3) mitigate harm, and 4) return all client papers/property necessary for representation.
[ABA] Must return all that client is entitled to
[CA] Must return everything
Fee amount
[ABA] No unreasonable fees
[CA] No unconscionable fees
[CA] Writing requirement for fees
Fee agreement must be in writing if exceeds $5k, writing must include: 1 nature of services, 2) responsibilities of parties, 3) basis for calculating fee
[CA] Exceptions to writing requirement for fees
(CHEW)
Corporate client
History of past services
Emergency services
Waived by client
What are contingent fees
Contingent fees are fees paid upon the lawyer’s achievement of a particular outcome
Contingent fee requirements
In writing and signed by client
[CA] also signed by attorney
Exception to contingent fee agreements
No contingent fees for criminal matters and domestic matters based on divorce or alimony
Can lawyers in the same firm split fees
YES
Fee splitting requirements for lawyers from different firms
Lawyers in different firms can split fees if 1) client consents in writing, and 2) total fee not increased due to splitting.
[ABA] fee split must be in proportion to services performed by each lawyer
[CA] fee split permitted even if one lawyer does all the work
Are referral fees permitted under the ABA
No, lawyers cannot give anything of value for recommendation under the ABA
Are referral fees permitted in CA
Yes, lawyers may give a gift after a recommendation is made
Exception to referral fees
Lawyer can pay fees for legal services plan or approved referral services
Duty to maintain client fund accounts
Lawyers have a duty to segregate client funds in a separate client trust account, not commingled with the lawyer’s own funds, and to distributed undisputed funds.
Duty to maintain records
Lawyers must maintain client recovers for 5 years after close of case
L/C privilege
Rule of evidence protecting lawyer from disclosing confidential communication made by client intended to be confidential and for the purposes of representation
Exceptions to L/C privilege
future crime/fraud or death/substantial bodily harm
Work product rule
Rule of civil procedure that protects against disclosure during discovery of any material containing mental impressions, conclusions, opinions, legal theories prepared in anticipation of litigation
Exceptions to work product rule
Discoverable if denial will unfairly prejudice party
Duty of confidentiality
Rule of ethics that generally prohibits lawyers from disclosing any info related to representation of a client, no matter its source, absent client’s informed consent. Includes the affirmative duty to prevent inadvertent or unauthorized disclosures. Applies to good faith prospective clients unless the lawyer communicated they can’t represent.
Exceptions to the duty of confidentiality
[ABA] prevent death/substantial bodily harm or substantial financial injury
[CA] prevent criminal act that may result in death/substantial bodily harm
L/C conflict
Cannot rep client if representation may be materially limited by lawyer’s own interests
Exception to L/C conflict
1) lawyer reasonably believes they can provide competent rep, 2) rep not barred by law, and 3) client gives informed consent confirmed in writing
Current client conflict
Cannot rep client if 1) client interest directly adverse to another client, or 2) significant risk that rep is materially limited by lawyer’s responsibilities to another client
Exception to current client conflict
1) lawyer reasonably believes they can provide competent rep, 2) rep not barred by law, 3) no claim by one client against another in same proceeding, and 4) client gives informed consent confirmed in writing/written informed consent
Current and former client conflict
Cannot rep client in same or substantially related matter as former client if interests are adverse
Exception to current & former client conflict
former client gives informed consent confirmed in writing/written informed consent
Prospective clients conflict of interest issue
Cannot rep client w/ interests materially adverse to that of a prospective client in same or substantially related matter if [ABA] lawyer received info that could be significantly harmful, or
[CA] lawyer received material info
Exception to prospective clients conflict of interest issue
Both clients give informed consent confirmed in writing/written informed consent
Conflict of interest issue when lawyer newly joins a private firm
Lawyer joining new firm can’t rep client in same or substantially similar matter if 1) client’s interests are materially adverse to client of former firm, and 2) lawyer acquired material confidential info about former client
Exception to conflict of interests with private firms
Former client gives informed consent confirmed in writing/written informed consent
Imputed disqualification
If one lawyer in a firm is conflicted, the whole firm is conflicted unless the conflict is personal or informed consent was given.
Circumventing imputed disqualification
a new firm can screen off a new lawyer from participation to avoid conflict by 1) no fee for the disqualified lawyer, 2) former client receives written notice of screening, and 3) firm provides certification of compliance if requested.
Prohibition on former gov’t lawyers
Former gov’t lawyer cannot rep client in a matter that the lawyer substantially participated in
Exception to prohibition on former gov’t lawyers
gov’t agency gives informed consent confirmed in writing/written informed consent
Organization client
Lawyer representing org owes duties of loyalty & confidentiality to the org, not to its individual constituents
Organizational misconduct step 1
If a lawyer knows or should know that an agent’s actions may cause injury to the org, the lawyer must 1) urge the agent to reconsider, and if that fails then 2) report to highest authority.
Organizational misconduct step 2
If the org fails to act after lawyer reported, then
[ABA] lawyer may disclose misconduct outside of the org to the extent reasonably necessary to prevent injury to the org or [CA] lawyer cannot disclose per duty of confidentiality but may withdraw
3rd party payments
Cannot accept payment for 3rd party for representation
Exception to 3rd party payments
1) client gives informed consent, 2) no interference w/ lawyer’s judgment, and 3) L/C confidentiality maintained
Duty of competence
Lawyers have a duty to provide competent rep, meaning possessing knowledge, skill, preparation reasonably necessary for representation, and [CA] requisite mental/emotional/physical ability.
Duty of diligence
Lawyer have a duty to provide diligent rep, meaning acting w/ commitment and dedication to client’s interest and without neglect or undue delay.
Duty of communication
Lawyer must 1) regularly communicate w/ client, 2) keep client informed, 3) communicate scope of rep, 4) advise client about limitations, and 5) explain matters for client’s informed decision.
Duty to avoid frivolous claims
Cannot file a claim/defense not supported by law or good faith argument for change.
Duty of candor
a lawyer cannot knowingly make false statements of fact/law and have a duty to correct such statements; must take remedial action
Duty to disclose controlling adverse legal authority
Only if not already disclosed by opposing counsel
Duty of fairness to opposing party
1) Can’t suppress evidence legally obligated to produce, 2) can’t pay for induced testimony unless fee for expert W, 3) can’t violate discovery rules, 4) can’t allude to inadmissible facts in court, 5) can’t communicate ex parte w/ judge unless authorized
Duty to jurors
Cannot communicate w/ any jurors or member of juror pool
Communications to those represented by counsel
Cannot communicate about subject of rep with a person the lawyer knows is represented by another lawyer, absent consent
Communications to those unrepresented
When communicating with unrepresented persons, a lawyer cannot give legal advice and must make clear who the lawyer represents.
Trial publicity duty
Cannot make extrajudicial statement that the lawyer knows will be disseminated in media and has a substantial likelihood of materially prejudicing the proceeding
Exception to trial publicity duty
May make statement to mitigate recent prejudicial publicity
Duties of prosecutors
1) Must have PC, 2) ensure D is advised of right to counsel and has opportunity to obtain counsel, 3) timely disclose exculpatory evidence, 4) post-conviction promptly disclose new evidence creating likelihood of wrongful conviction, 5) cannot seek waiver of pretrial rights from unrepresented D
Advertising limitations
Cannot make false or materially misleading statements about own person or services.
Advertising requirements & permitted info
[ABA] name/contact info of at least one lawyer or firm
[CA] name and address of lawyer responsible for the ad.
Permitted to advertise fields of practice, fees for routine services, bar admission info, specializations/certificates
Rule against solicitation
Cannot solicit prospective clients in person, by live phone, or [CA] real-time electronic contact if significant motive if financial gain
Exceptions to solicitation limitations
Contacted person is a lawyer, family member, close personal friend, prior professional relationship
Duty to report misconduct
[ABA] must report misconduct by another attorney if a lawyer has actual knowledge, [CA] no duty to report other lawyers but there is a duty to self report
Unauthorized practice of law
A lawyer is subject to discipline for practicing in not-admitted jxs or for assisting non-lawyers in the unlicensed practice of law
Duty to supervise
Must make reasonable efforts that others comply w/ the ethical rules and must take remedial action when possible
Duty of subordinate lawyers
Subordinate lawyers must follow ethics rules even if acting under the discretion of supervising lawyers. No violation if the subordinate lawyer is acting in accordance w/ the supervising lawyer’s reasonable resolution of a question of professional duty. However, the subordinate lawyer does have the responsibility to undertake their own analysis of law applicable to the supervising lawyer’s conduct.
Duty to avoid dishonesty/fraud
Duty exists regardless of whether the conduct relates to the practice of law
Threat to gain advantage
In CA only, a lawyer must not threaten to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute.
