Professional Responsibility

Question 1

Duty of Competence (ABA rule)

Answer 1

A lawyer is obligated to provide competent representation to a client and must possess knowledge, skill and thoroughness and preparation reasonably necessary for representation.

Question 2

Duty of Competence (CA rule)

Answer 2

A lawyer is required to not intentionally, recklessly or repeatedly fail to perform legal services w/ competence.

Question 3

When can a lawyer competently accept representation?

Answer 3

A lawyer may accept representation if the requisite level of competence can be achieved through reasonable preparation or by associating w/ a lawyer of established competence in the field.

Question 4

Duty to report misconduct (ABA)

Answer 4

Under the MR, a lawyer is required to report misconduct by another lawyer when the lawyer has actual knowledge of the misconduct and it concerns “material matters of clear and weighty importance” that raise a substantial question as to the lawyer’s honesty or professional fitness

Question 5

Duty to report misconduct in CA

Answer 5

There is no duty to report lawyers but there is a duty to self-report

Question 6

Duty of loyalty

Answer 6

Lawyers owe a DOL. Loyalty and independent judgment are essential elements in the lawyer’s relationship to a client.

A lawyer must put his client’s interests above all other interests and avoid COIs.

Question 7

COIs + When do they arise?

Answer 7

A lawyer must avoid actual and potential COIs.

A COI arises if:
(1) the representation of one client is directly adverse to another client represented by the lawyer
(2) there is a significant risk that the lawyer’s representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, former client, third party or by a personal interest of the lawyer.

Question 8

Potential COI ?

Answer 8

Arises if there is a significant risk that the representation of a client will be materially limited by the lawyer’s representation of another client, a former client a third party or the lawyer’s own personal interests.

Question 9

Sexual Relationship w/ a client?

Answer 9

Both the MR and CA prohibit a lawyer from engaging in sexual relations with a client, unless a consensual relationship existed btw the lawyer and a client when the lawyer-client relationship commenced.

CA: there is an express exception for sexual relations w/ a client who is the lawyer’s spouse or registered domestic partner. The rule does not permit the client to waive the conflict through informed consent.

Question 10

When may a lawyer undertake representation despite there being a COI?

Answer 10

Under both the ABA and CA, if there is a COI a lawyer may undertake representation if:
(1) the lawyer reasonably believes that he can competently and diligently represent the client.
(2) the representation is not prohibited by law
(3) the representation does not involve the assertion of a claim against another client represented by the lawyer in the same case or other proceeding before the tribunal
(4) each affected client has given informed consent, confirmed in writing (ABA) or informed written consent (CA)

Question 11

What is the special conflict of interest rule in CA?

Answer 11

In CA – even when there is not a significant risk that the lawyer’s representation of the client will be materially limited, a lawyer is not permitted to represent a client in a matter in which the lawyer knows or reasonably should know that another party’s lawyer:
(1) is a spouse, parent, child or sibling to the lawyer
(2) Lives with the lawyer
(3) Is a client of the lawyer or
(4) has an intimate personal relationship with the lawyer

UNLESS: lawyer provides written disclosure of the relationship to the client.

Question 12

Screening under the ABA rules

Answer 12

Any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if the disqualified lawyer is:
(1) timely screened from any participation in the matter and is apportioned no part of the fee
(2) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules

Question 13

Screening under the CA rules:

Answer 13

Any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if:
(1) the prohibited lawyer did not substantially participated in the same or substantially related matter
(2) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee
(3) written notice is given to any affected former client.

Question 14

Waiver of a COI:

Answer 14

A client may agree to waive a COI provided that there has been full disclosure to the client and the client consents to it.

Question 15

Duty of Confidentiality (ABA and CA)

Answer 15

The duty of confidentiality requires that an attorney must not reveal information relating to the representation of the client.

Has no per se rule of confidentiality. However, the state bar act and the attorney oath that all lawyers in California pledge require that lawyers maintain inviolate client confidences.

Question 16

Creation of an Attorney - Client relationship

Answer 16

The lawyer client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.

Question 17

Representing an organization:
To whom does the lawyer owe its duties?

How must a lawyer deal with the og directors and officers?

Answer 17

A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents such as officers, directors or employees.

In dealing with an organization’s directors, officers and employees: a lawyer must explain the identity of the client for whom the lawyer acts, whenever it is or becomes apparent that the organization’s interests are or may become adverse to those of the constituents with whom the lawyer is dealing.

The lawyer must not mislead such a constituent into believing that the constituent may communicate confidential information to the lawyer in a way that will not be used in the organization’s interest tif that is or becomes adverse to the constituent.

Question 18

Reporting up in an organization?

Answer 18

If the lawyer knows that the person associated with the organization is engage in an action that is a violation of a legal obligation or law reasonably imputable to the organization and is likely to result in substantial injury to the organization, the lawyer shall report up and refer the matter to the higher authority in the organization (unless the lawyer believes this is not in the best interests of the organization).

Question 19

Reporting out? (under both the MR and CRPC)

Answer 19

Under the MR:
If the highest authority refuses to address in a timely manner a clear violation of law and the lawyer reasonably believes that the violation is certain to result in substantial injury to organization, then the lawyer may disclose information outside the organization to the extent necessary to prevent substantial injury.

Under CRPC:
The lawyer may not report out and disclose information outside the organization if it will violate the DOC; rather the lawyer should urge reconsideration of the matter to the highest authorities within the organization or withdraw from representation.
Exception: a lawyer may reveal confidential information if they believe it reasonably necessary to prevent a criminal act likely to result in death or substantial bodily harm.

Question 20

Fee arrangements (under MR vs. CA)

Answer 20

MR: fees must be reasonable based on such factors such as the time, labor and skill required to perform the work.

CA: fees must not be unconscionable, which is judged by factors including overreaching, whether the fee is proportionate to the value of the services performed and the sophistication of the lawyer and the client.

Question 21

Contingent Fees (under MR vs. CA)

Answer 21

Attorneys may charge a contingent fee on the outcome of the case. However, such fees are prohibited in criminal and domestic relations cases.

MR: a CFA must be in writing, signed by the client, state the methodology for determining the fees and provide details on deduction for expenses.

CA: the client must be given a duplicate copy of the agreement that is signed by both the lawyer and client.

Question 22

Flat rate?

Answer 22

A lawyer may charge a flat fee for specified legal services. A flat fee is a fixed amount that constitutes complete payment for the performance of described services regardless of the amount of work ultimately involved.

Question 23

Referral Fees (MR)

Answer 23

he model rules generally prohibit payment to anyone for recommending a lawyer’s services, except for permissible lawyer referral plans and services, reciprocal referral agreements that comply with the MR and nominal gifts of appreciation.

A referral fee given in return for merely recommending another attorney violates this rule.

Question 24

Referral Fees (CA)

Answer 24

Although a referral fee is generally impermissible, an exception exists for when an attorney gives a “thank you” gift to a person for a referral that results in employment so long as it was not offered or given in consideration of a promise, agreement or understanding that the gift or gratuity would be forthcoming.

Question 25

Fee Splitting (MR)

Answer 25

Under the MR, a lawyer may ethically divide fees w/ a lawyer from a different firm if:
(1) The division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation
(2) The client agrees to the split in writing and
(3) The total fee is reasonable

Question 26

Fee splitting (CA)

Answer 26

A fee may not be shared with a lawyer from a different firm unless:
(1) The lawyers enter into a written agreement to divide the fee
(2) The client consents in writing following a written disclosure that includes the identity of the lawyers or firms and the terms of the division
(3) The total fee charged is not increased solely by reason of the agreement to divide fees.

Question 27

Retainer agreement (ABA v. CA)

> > When must the rate and fees be communicated?
What are the writing requirements? (ABA vs. CA)
Exceptions under CA

Answer 27

All rates and fee agreements must be communicated to the client before or within a reasonable time, after the relationship commences.

Writing requirement ABA: generally, only contingent fee agreements must be in writing.

CA: However, CA requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client will exceed 1000 dollars.

Unless:
(1) Client is a corporation
(2) The agreement was made during an emergency
(3) The client waives the writing requirement in writing or
(4) The services are for a previous client with similar services in which the fee can be implied.

Question 28

Solicitation (ABA vs. CA)

Answer 28

CA: a lawyer must not solicit professional employment by live person-to-person, telephone or real time electronic contact when a significant motive is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or a person with home the lawyer has a familial or close, prior professional relationship

MR: Same but does not prohibit solicitation by real-time electronic contact.
Third exception: for a person who routinely uses for business purposes the type of legal services offered by the lawyer.

Question 29

Advancing Court costs (ABA vs. CA)

Answer 29

MR: A lawyer may advance litigation costs to the client. Although the client must remain ultimately liable for those costs, repayment may be contingent upon the outcome of the case.

CRPC: A lawyer may advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter.

Question 30

Business Associations w/ non lawyers

Answer 30

A lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

Question 31

Runners and Cappers (MR)

Answer 31

Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline.

Question 32

Runners and Cappers (CA)

Answer 32

Use of such runners or cappers is a criminal violation and any contract for runners and cappers is specifically void in CA.

However, use of a state bar–authorized lawyer-referral service, legal insurance, prepaid legal service plan, or pro bono network is not subject to this prohibition.

Question 33

Inadvertent disclosure (ABA)

Answer 33

A lawyer who receives a document relating to the representation of another lawyer’s client and who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.

Question 34

Inadvertent disclosure (CA)

Answer 34

Under the CRPC, where it is reasonably apparent to a lawyer that a writing was inadvertently sent and the lawyer knows or should know that the writing is privileged or subject to the work product doctrine, the lawyer shall
(i) refrain from examining the writing any more than is necessary to determine that it is privilege or subject to the WPD and
(ii) promptly notify the sender. Additionally, the lawyer shall return the writing to the sender, try to reach an arrangement with the sender or seek guidance from the tribunal.

Question 35

Duty to communicate:

Answer 35

Under both the MR and CRPC, a lawyer has a duty to keep the client reasonably informed of the status and all important matters relevant to the case + promptly comply with reasonable requests for information.

Question 36

Duty of candor:

Answer 36

Under MR and CA, a lawyer representing a client in any proceedings of a tribunal has a duty of candor. A lawyer must not knowingly make a false statement of law to the court;

Question 37

Duty to not file frivolous claims (MR vs. CA)

Answer 37

MR: prohibits a lawyer from bringing or defending a proceeding or asserting or opposing an issue in a proceeding unless there is a basis in law and fact for doing so that is not frivolous. An action is considered frivolous if the lawyer is unable to make a good faith argument on the merits of the action taken.

CA: a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good faith argument for an extension, modification or reversal of such existing law.

Question 38

Duty of fairness: discovery (MR)

Answer 38

The duty of fairness requires that a lawyer not make a frivolous discovery request of an opposing party.

A lawyer must make a reasonably diligent effort to comply with a legally proper discovery request of an opposing party.

Question 39

Claims brought to cause embarrassment (MR)

Answer 39

A claim brought merely to embarrass, delay or burden a third person violates the rules.

Question 40

Threats and harassment (CA)

Answer 40

The California rules prohibit a lawyer from seeking, accepting or continuing employment to conduct a defense without probable cause or for the purpose of harassing or maliciously injuring any person.

The California rules prohibit a lawyer from threatening to present criminal, admin or disciplinary charges to obtain an unfair advantage in a civil dispute.

Question 41

Duty to supervise

Answer 41

A lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to all governing ethics rules.

Question 42

Duty of subordinate lawyers:

Answer 42

MR and CA:
A subordinate lawyer must conform to the ethics rules even if acting under the direction of a supervising lawyer.

The subordinate lawyer does not violate the ethics rules, however if he acts in accordance with the supervising lawyer’s reasonable resolution of an arguable question of professional duty.

In order to know whether a supervising lawyer’s resolution is in fact reasonable, the subordinate lawyer has a R to undertake his own analysis of the law applicable to the supervising lawyer’s conduct. Only if the issue is ambiguous, then the subordinate lawyer will not be in breach of his duty to follow the supervisory lawyer’s instructions.

Question 43

Communication with a represented person

Answer 43

Generally, a lawyer is not permitted to communicate about the subject of the representation with a person the lawyer knows to be represented by counsel in the matter unless the lawyer has consent from the other lawyer or is authorized by law or court order to do so.

Question 44

Communication w/ a represented organization (MR vs. CA)

Answer 44

MR: in the case of a represented organization, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization with respect to the matter, or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

CA RPC: In the case of a represented organization, a lawyer is prohibited from communication with (i) a current officer, director, partner or managing agent of the organization, (ii) a current employee, member, agent or other constituent of the organization if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability.

Question 45

Duty of diligence: (MR vs. CA)

Answer 45

Under MR: a lawyer must act with reasonable diligence and promptness in representing a client. The lawyer shall 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 disadvantage that might be realized for a client.

Under CRPC: A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.

Under both rules: a lawyer is generally required to be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer.

Question 46

Unauthorized practice of law

Answer 46

A lawyer shall not practice or form a partnership or association authorized to practice law with a non-lawyer. Moreover, a lawyer shall not share legal fees with a non-lawyer, and a non-lawyer shall not direct or control the lawyer’s professional judgment.

A lawyer who engages in the unauthorized practice of law, or assists a non-lawyer in unauthorized practice, may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.

Question 47

Employing a disbarred attorney:

Answer 47

Under the CRPC: a lawyer must not employ, associate in practice with or assist a person the lawyer knows or reasonably should know is a disbarred attorney to render legal advice to a client, make appearances on behalf of client, appear as a representative of the client at a deposition or other discovery matter, or engage in activities that constitute the practice of law.

Moreover, a lawyer must serve written notice of an ineligible person’s employment upon the California State Bar and each client on whose specific matter the ineligible person will work.

Question 48

Permissive Withdrawal (ABA vs. CA)

Answer 48

Under the MR: A lawyer may seek to withdraw if he can do so without materially harming the client. Even if harm will result, a lawyer may still permissively withdraw if the client insists on a course of action that the lawyer finds repugnant, or which the lawyer has a fundamental disagreement.

Under the CA RPC: A lawyer may permissively withdraw when the client, by other conduct, renders it unreasonably difficult for the lawyer to carry out the representation effectively.

Question 49

Mandatory Withdrawal

Answer 49

MR: A lawyer must withdraw if: (1) the representation will result in violation of the rules of professional conduct or other law, (2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client, or the lawyer is discharged by the client.

Under CA explicitly requires withdrawal if a client acts without probable cause to harass or injure another person.

Question 50

Duty not to commingle

Answer 50

Under MR 1.15, a lawyer shall hold the client’s property that is in his possession in connection with the representation separate from his own property.

Question 51

Duty to protect and preserve evidence

Answer 51

The MR and CA RPC require that a lawyer must not unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

Question 52

Procedure to withdraw

Answer 52

The procedure for terminating representation is to first provide the client with reasonable notice before withdrawing, to give the client a reasonable opportunity to obtain new representation. Further, if permission for termination of a representation is required by the rules of a tribunal, a lawyer must not terminate a representation before that tribunal without its permission.

Question 53

Business Transaction w/ client

Answer 53

A lawyer must not enter into a business transaction with a client or knowingly acquire any interest adverse to a client, unless the terms are fully disclosed in writing, they are fair and reasonable to the client, client consents in writing and the client is advised to seek out independent counsel.