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Rules for CA Bar Exam (Attack Sheet) > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

Professional Responsibility Rules from Outline

1
Q

What is the duty of Loyalty?(Pr)

A

The lawyer’s duty to his client that requires the lawyer to put the interest of his client above all other interests and to avoid any conflicts of interest.

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2
Q

How can a concurrent conflict of interest arise between current clients?

A

Between current clients if representation of one client is directly adverse to another client

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3
Q

When is there a concurrent conflict between a current client and a lawyer’s responsibility to another client, former client, third person, or personal interest?

A

When there is a significant risk that representation of one or more clients will be materially limited by these responsibilities.

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4
Q

Can a lawyer represent clients with interests that are directly adverse?

A

No.

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5
Q

When can a lawyer represent a client despite concurrent conflict?

A

Lawyer reasonably believes can competently and diligently represent each affected client, clients not directly adverse, written informed consent, not prohibited by law.

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6
Q

What is the California no risk limitation regarding Concurrent Conflicts of Interest?

A

Lawyer must always provide written disclosure of conflicts and meet exceptions to concurrent conflicts of interest when any lawyer in firm has any relationship to party or witness, or another party’s lawyer is related to lawyer/client of lawyer/intimate relationship with lawyer. Even in absence of significant risk.

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7
Q

3 primary types of conflict. Conflict between client and ____

A

Client, Third Party, Attorney’s personal interests

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8
Q

In California, can a lawyer represent both the insurer and the insured?

A

Yes, where the insurer has contractual right to unilaterally select counsel for the insured.

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9
Q

Who does lawyer employed by organization represent? In whose best interests must lawyer act?

A

Represents organization and must act in best interest of organization.

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10
Q

Is representation of organization and its officers/directors/employees/other constituents a concurrent conflict?

A

Yes.

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11
Q

Under the model rules, what should a lawyer do when she identifies misconduct of employee/officer/other person associated with an organization.

A

If the lawyer knows person associated with organization is engaged in or intends to engage in action that is violation of legal obligation and is likely to result in substantial injury to the organization, lawyer shall report up UNLESS lawyer reasonably believes not in best interest of org to do so.

CA: lawyer knows or reasonably should know - higher standard

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12
Q

If a corporation’s lawyer identifies misconduct, reports up, and the highest authority fails to take action, should the lawyer report out?

A

Model Rules: Lawyer MAY report out and reveal information if disclosure necessary to prevent injury.

California: Lawyer can report out ONLY if necessary to prevent a criminal act likely to result in death or substantial bodily harm. (Can urge reconsideration, withdraw from representation)

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13
Q

Can a lawyer represent multiple defendants in an aggregate settlement or guilty plea?

A

Only with informed written consent.

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14
Q

Under what circumstances are conflicts of one attorney NOT imputed to all attorneys in the firm?

A

When the conflicts are personal in nature and doesn’t present significant risk of materially limitation representation by other firm attorneys, or conflicts based on former client at prior firm; written notice for former client and proper screen.

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15
Q

Generally, are conflicts for one attorney imputed to all attorneys in the firm?

A

Yes

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16
Q

How can a client waive imputed disqualification

A

Client can waive with informed written consent.

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17
Q

When does a conflict exist between attorney’s client and third party?

A

Conflict exists if there is significant risk that representation of a client will be materially limited by lawyer’s loyalty/responsibility to a third party.

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18
Q

Under what circumstances can lawyer accept compensation from third party to represent client?

A

Only if client gives informed consent. (CA: Consent must be written) AND no interference with lawyer/s independent professional judgment or with lawyer client relationship, and information relating to representation remains confidential.

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19
Q

When does conflict exist between client and lawyer’s personal interest?

A

Significant risk that representation of client will be materially limited by lawyer’s personal interest

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20
Q

Can a lawyer’s personal beliefs result in a conflict between client and personal interests?

A

Yes.

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21
Q

Types of conflicts between client and lawyer’s personal interest

A

Lawyer’s personal relationships and belief, sexual relations with client unless consensual sexual relationship existed before lawyer-client relationship; business transactions with clients; solicitation of gifts from client that creates conflict; proprietary interest; financial assistance/advances to clients; limiting malpractice liability; settlement of claims with former client

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22
Q

Can a lawyer represent client if there is conflict with his personal beliefs?

A

Yes - with full disclosure and written consent.

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23
Q

CA distinction: when must lawyer issue written disclosure regarding lawyer’s personal relationships?

A

one lawyer is client of the other lawyer, two lawyers cohabitate, two lawyers have personal intimate relationship

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24
Q

Under what circumstances can a lawyer enter into a business transaction with client, or knowingly acquiring an interest adverse to client?

A

terms are fair and reasonable to client,

terms fully disclosed in writing (CA: lawyer’s role in transaction fully disclosed);

client advised in writing to seek independent counsel (CA: client actually represented by independent lawyer);

client gives informed written consent to essential terms.

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25
Can a lawyer solicit a gift from a client or prepare an instrument giving the lawyer a gift? Ca rules?
Lawyer cannot solicit gift or prepare instrument giving lawyer (or personal relating to lawyer) a gift unless lawyer/person is related to the client. CA: lawyer can accept if client has been advised by independent lawyer who has provided certificate of independent review, or if gift is fair/no undue influence
26
Can a lawyer acquire proprietary interest in cause of action or subject matter of litigation?
Yes, lien to secure attorney services, or contract for reasonable contingency fee in civil case.
27
Can a lawyer provide financial assistance to client?
ABA: Only contingency cases, and advance court costs/ expenses of litigation for indigent clients. CA Rule: Lawyer can lend for any purpose if client promises in writing to repay.
28
Can a lawyer limit malpractice liability under MR? Under CA Rules?
ABA: only if client represented by independent counsel CA: Not allowed. Ever.
29
Rule: lawyer settlement a claim or potential claim for liability with unrepresented/former client.
ABA: Only if client is advised to seek (and given reasonable opportunity to seek) advice of independent legal counsel. CA: Client actually represented by independent counsel.
30
Rule: Duty to Communicate (to client)
Lawyer shall prompty inform client of any decision that informs client's informed consent, keep client informed of status of case including settlement/plea offers, and promptly respond to client. CA: Lawyer can delay transmission if lawyer reasonably relieves client would react in a way that would cause imminent harm to client or others.
31
Rule: Scope of Representation
Client: Substantive decisions (settle/plea/waive jury trial, testify,appeal) Attorney: Legal strategy (motions, discovery, witness, evidence use.)
32
Exceptions to duty of Confidentiality - ABA Rule
No revealing, EXCEPT Cats and Dogs Can Cuddle And Dream : Consent, Disclosure impliedly authorized, disclosure to prevent Death/harm; prevent client from committing Crime or to mitigate crime/fraud injury to financial interests; Comply with court order, secure legal Advice about lawyer's compliance with ethics rules or establish claim or Defense on behalf of lawyer in controversy between lawyer and client.
33
Duty of Confidentiality - CA Rule
MUCH STRICTER THAN ABA Rule. lawyer shall not revel information relating to representation of client without the informed consent of the client, except: - when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm. (First good faith effort to persuade client, inform client, only reveal as much information as necessary); - when compelled by court order - to establish claim or defense on behalf of the lawyer in controversy between lawyer and client
34
Attorney Client Privilege: Rule
Allows client to keep communications with his attorney confidential. Communictions must be intended to be confidential and for the purpose of facilitating legal services. Client can refuse to testify and prevent attorney from testify.
35
What does the attorney client privilege apply to?
Communications, not physical evidence.
36
Attorney client privilege - CA rules - eavesdroppers
Holder can stop eavesdroppers from revealing information.
37
Does the attorney-client privilege protect employees of an organization and an organization's lawyer?
Applies to employees/agents if authorized by organization to make communication to lawyer.
38
When does attorney/client privilege end (death)?
Federal common law: After death of client, except if there is will contest. Califonia: estate fully distributed
39
Exceptions to attorney-client privilege
Lawyer's services used to further fraud, relates to dispute between lawyer and client, two or more parties consult on matter of common interest and communication offered by one against another CEC Only: Lawyer reasonably believes disclosure necessary to prevent crime that is likely to result in death or substantial bodily harm.
40
General rules - fee agreements
ABA: Fees must be reasonable. TENT FLAW (Time, Experience, Nature, Fee custom, Likelihood preclude other employment, Amount involved, Whether fixed/contingent) California: Not unconscionable based on common law factors and add'l California factors: Furry Dogs Satisfy Anxious Clients (Fraud by lawyer, failure to Disclose, SOphistication of lawyer/client, Amount of fee proportionate to work, informed Consent)
41
What details should be included in fee agreements?
How the fee is identified, the nature of services, and responsibilities of the lawyer of requirement.
42
Do fee agreements need to be in writing?
ABA: No CA: Over $1000 must be in writing unless client is corporation, agreement made during emergency, client aives writing requirement in writing, or services are for previous client with similar services.
43
Does California require arbitration of fee dispute? ABA rules?
California: requires arbitration. ABA:encouraged, but not required
44
Requirements for contingent fee agreements
IN writing, signed (ABA: By client, CA: lawyer and client); state method by which fee is to be determined, litigation and other expenses to be deducted from recovery; state whether expenses will be deducted before or after contingent fee is calculated. CA: Agreement must state that fee is negotiable, unless claim is for negligence against health care provider.
45
Are contingency fees allowed in domestic relations or criminal cases?
No
46
Fee Splitting
Division of fees between lawyers not in the same firm may be made only if : ABA: division proportionate to services performed by each lawyer, client agrees to division and consents in writing, total fee is reasonable. CA: lawyers enter into written agreement to divide fee, client consents in writing after full written disclosure, total fee is not increased simply because of division.
47
Finder's fees - ABA and CA
ABA: Not allowed, except qualified referral service approved by regulatory authority. CA: Lawyer can make a gift for past recommendation.
48
Rule: Referral fees between lawyers
Reciprocal referral agreement permissible if it's not exclusive and client is informed.
49
What is the duty of competence? ABA
A lawyer shall represent skill with legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
50
Does lawyer have duty of diligence and promptness?ABA
Yes, duty of diligence.
51
Rule: lawyer's duty to safekeep client's property.
Must be kept separate from lawyer's money, not commingle funds. Client trust account + records for five years.
52
What must lawyer do with advance fees? ABA and CA.
ABA: Lawyer deposits into client trust ccount fees paid in advance. Withdrawn only as fees earned/expenses occurred CA: can be deposited into operating account as long as client advised that client can require fees to be deposited in trust account.
53
When must a a lawyer withdraw from representation? CA
Lawyer's mental or physical condition material impairs lawyer's ability to represent client Lawyer is discharged Lawyer knows or should know that client is bringing action without probably cause or to harass or maliciously injure a person
54
When MUST a lawyer withdraw from representation? ABA
ABA: representation will result in violation of rules of professional conduct or other law. Lawyer's mental or physical condition material impairs lawyer's ability to represent client Lawyer is discharged CA: Lawyer knows or should know that client is bringing action without probably cause or to harass or maliciously injure a person
55
Can a lawyer withdraw from representation if the representation is unreasonably difficult?
Yes
56
What is a lawyer's duty to client upon withdrawal?
attorney shall protect client's interests and provide reasonable notice, surrender papers and property, refund advanced fees.
57
Rule: Direct solicitation of clients
Direct solicitation of clients is not allowed, except free legal services, family members, clients/former clients, nondeceptive letters labeled as advertising to people known to have specific problem.
58
Can an attorney refer to herself as a specialist without recognition as such by the ABA or state approved organization?
No.
59
When is a lawyer responsible for the conduct of another lawyer?
Lawyer ratifies conduct, is a partner, or has direct supervisory authority and could have mitigated consequences.
60
To whom do lawyers have a duty of fairness?
Represented parties (don't talk to them w/o permission); Court (don't make false statements to court, offer false evidence) Opposing counsel (don't obstruct evidence, make frivolous discovery request.)
61
What acts are prohibited by the duty of decorum to the tribunal?
Improper influence jurors/judges; disrupt, communicate with jurors or judges
62
Do California lawyers have a duty to not suppress evidence?
Yes. CA rules prohibit a lawyer from suppressing evidence that lawyer or client has legal obligation to reveal
63
Are lawyers participating in an investigation/litigation permitted to make statements that will be publicly disseminated, and have substantial likelihood of materially prejudicing proceedings?
No.
64
What are the special rules for prosecutors?
Refrain from prosecuting charges not supported by probably cause, make reasonable efforts to ensure accused is advised of right to counsel, timely disclose exculpatory evidence, refrain from extrajudicial statements, seek to remedy wrongful convictions.
65
Do ABA rules require that lawyers report unethical conduct?
yes, if Lawyer who knows that another lawyer has violated RPC that raises substantial question as to lawyer's honesty, trustworthiness or fitness shall inform appropriate professional authority
66
Duty to report ethical violations - CA rule.
Reporting of violation is permitted but not required. California lawyers must self-report themselves when sued for malpractice 3x in 12 months, fraud, sanctions, felony charges, convicted of serious crime, disciplined in another jxn.
67
What are a lawyer's duties to the public/profession?
Promote Public confidence - no frivolous claims, criminal conduct, CA: harassing (continuing employment to conduct defense without probable cause for purpose of harassing maliciously injuring a person) , threatening J(threatening criminal/admin/disciplinary charges to obtain unfair advantage in civil dispute.
68
What are the rules for conflicts based on a former client at a prior firm?
Conflicted lawyer needs to be timely screened, and former client provided with written notice. CA: Prohibited lawyer didn't substantially participate in same or substantially related matter.
69
Duty of competence: CA
CA: Lawyer can't fail to perform legal services intentionally, recklessly, with gross negligence, or repeatedly. Lawyer's duty to act competently applies to learning and skill, and mental/physical/emotional ability; lawyer allowed to consult with another competent lawyer, acquire skills to become competent before performance required.
70
What is the standard of diligence? CA duty of diligence
CA: Lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.
71
Do California rules require mandatory withdrawal for all laws?
No, only for violation of rules of professional conduct.
72
When MUST a lawyer withdraw from representation? ABA
ABA: representation will result in violation of rules of professional conduct or other law. Lawyer's mental or physical condition material impairs lawyer's ability to represent client Lawyer is discharged
73
Can a lawyer withdraw on the grounds that continuing representation will cause an unreasonable financial burden on the lawyer?
Yes
74
Does paying for a witness to testify violate the duty of fairness? (CA)
Yes, with limited exceptions
75
Does advising a person to leave the jurisdiction to keep from testifying violate the duty of fairness? CA
yes
76
Can a lawyer withdraw from representation if she is unable to work with co-counsel?
Yes.
77
ABA: Can a lawyer withdraw if there is no material adverse effect on the interest of the client?
Yes
78
Do sexual relations with clients constitute a conflict?
Yes unless the relationship existed before the lawyer-client relationship.
79
Are business transactions with clients conflicts between client and lawyer's personal interest?
Yes
80
Do sexual relations with clients constitute a conflict and personal interest?
Yes unless the relationship existed before the lawyer-client relationship.
80
Does financial assistance/advance to client create a conflict between attorney's personal interests and client?
Yes.
81
Does a lawyer have a duty to not file frivolous claims? Under what duty?
Yes, duty to promote public confidence.
82
Does a lawyer have a duty to not engage in criminal conduct?
Yes, duty to promote public confidence.
83
Does a lawyer have a duty to refrain from conducting a defense without probably cause for purposes of harassing someone, or threatening legal action to gain an upper hand in a civil dispute?
Yes - duty to promote public confidence.
84
Does seeking to influence jurors or judges violate the duty of decorum to the tribunal?
Yes
85
Can lawyer withdraw without notice?
No
86
Do lawyers have a duty to protect and preserve evidence?
Yes
87
Can lawyer withdraw without advance notice?
No.
88
Can lawyer assert personal knowledge of facts in issue?
No, unless testifying.

Rules for CA Bar Exam (Attack Sheet) (15 decks)

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