Professional Responsibility Flashcards
Employing a disbarred attorney
Cannot employ disbarred attorney for purposes of giving legal advice, representing client, or engaging in activities that constitute the practice of law
Assisting in unauthorized practice of law
Lawyer knowingly assist a person not admitted to the bar in unauthorized practice of law. The non-lawyer is subject to civil and criminal penalties
Supervision of non lawyers
Supervising attorney must make reasonable efforts to ensure that person’s conduct conforms to ethics rules
Threatening criminal charge for advantage
CA lawyers prohibited from threatening criminal or disciplinary charges for an advantage in a civil suit
Duty of Candor - frivolous claim
CA RPC 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 change in law
Communication with represented person
Not permitted to speak about subject of the case with person known to be represented by counsel unless lawyer has consent by other lawyer or court order
Duty of competence
CA RPC requires lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence
Duty of loyalty
Owe clients duty of loyalty. Loyalty and independent judgment are essential elements in lawyers relationship with client
Conflict of interest and how to get around it
Arises when significant risk that representation of client will be materially limited by lawyers personal interests or interests of 3rd party.
1) lawyer reasonable believes he can competently and diligently represent client
2) not prohibited by law
3) does not involve association of a claim by one client against another client in the same case
4) each client gives informed written consent
Duty to withdraw
Lawyer must withdraw when representation will result in violation of the rules of professional conduct or other law
Inadvertent disclosure
Under CPRC, when it is apparent that writing was inadvertently sent, and should know it’s privileged or work product, lawyer shall
1) refrain from examining any more than necessary to determine it’s privileged
2) promptly notify the sender and try to return it
Duty to Communicate
Lawyer has duty to keep client reasonably informed of status of the case and all important matters relevant to the case and promptly comply with reasonable requests for information. In CA must keep client informed about significant developments
Duty of Candor
Must not knowingly make false statement of fact or law to tribunal or fail to correct false statement of material fact or law previously made, and not knowingly offer false evidence
Duty of Confidentiality
Prohibited from disclosing information relating to the representation of a client unless authorized by informed written consent, impliedly authorized, or an exception applies
Duty of loyalty - former clients
Lawyer who previously represented a client must not later represent another person in the same or substantially similar matter if that person’s interests are materially adverse to the former client’s interest unless informed written consent given by former client
Corporate misconduct
Upon discovery, lawyer must report matter to higher authority in organization
Corporate misconduct - no higher authority to report to
1) clear violation of law
2) violation certain to cause substantial injury to organization
3) lawyer MAY reveal information to outside authorities to the extent necessary to prevent the injury
CA rules: CANNOT report unless risk of substantial harm or death
Attorney client relationship
Begins when client reasonably believes relationship exists, no formal writing required
Retainer agreement
Contingent fee - must be in writing
CA: Any services contract must be in writing if total expenses to client exceeds $1k. Signed by both parties. Copy given to client
Fees
Must be reasonable based on skill required, labor, time. In CA must not be unconscionable
Permissive withdraw in CA
Model rules: can withdraw at any time if not materially harming client
CA: needs proper reason
ABA reasons to permissively withdraw despite material harm
- Client Crime or fraud
- Used attorney services to commit crime or fraud
- Client insists on (attorney pov) repugnant action
- Client makes Representation unreasonably difficult
CA rules when lawyer may withdraw
- Client claim or defense not warranted under existing law, and no GF argument to change it
- Client pursuing criminal or fraudulent activity, or used lawyers services for it
- Client insists on lawyer pursing criminal conduct
- Client makes rep unreasonably difficult
- Continuation likely to result in CA rule violation
Procedures to withdrawing
Must give client reasonable notice
If litigation pending, must get court approval
Termination duties
- Return everything to client
- CA rules cannot hold anything for payment, must return everything
- Cannot hold any unearned advanced fees
Corporation fee agreement
Writing not required if client is corporation (unless contingency fees)
Contingent fees not allowed in
Crim or domestic case (if contingent on result of obtaining divorce if on amount of support recovered
Contingent fee requirements
- Writing, signed by both w copy to client
- Terms of calculating fees
- Expenses that Client is liable for
If failure to comply, lawyer still entitled to reasonable fee
Fee splitting
Same firm: totally ok
CA rules:
1. lawyers written agreement between each other
2. Client informed written consent
3. Total fee is not unconscionable
Referral fees
CA allowed
May give gift or gratuity for a referral, but gift or gratuity can’t be offered in anticipation of referral or for future referrals
Fee-split w non-lawyers
Cannot fee split w non lawyers or partnership w them if any activities include the practice of law
Client privilege CA rules
Terminates when clients estate is settled and the personal representative is discharged
Exceptions to client privilege
CA: future crime or fraud committed by anyone
- or lawyer reasonably believes that disclosure is necessary to prevent death or substantial bodily harm of an individual
Opposing lawyers related
Must notify client in writing
Lawyer as a witness
Cannot act as an advocate in a trial if likely to be a necessary witness unless testimony related to uncontested issue or nature and value of legal services
Acquiring interest in litigation
Cannot obtain proprietary interest unless:
1. Lawyer acquires lien by law to secure payment OR
2. Contingency fee
CA limiting malpractice recovery
Prohibited from doing so, ABA allows it if client rep’d by another lawyer
Third party payment
Client needs to give informed written consent
Gaining competence
May accept case and gain competence by preparation of association with experienced attorney in that field
Duty of fairness to OC
Lawyer must not unlawfully obstruct opposing parties access to evidence
CA: May not pay witness fee contingent on their testimony or outcome of case, only for their expenses or expert witness fees
False evidence
Prohibited ONLY if attorney knows it’s false
If client refuses to retract or correct false evidence
Withdraw if possible
If not allowed, CA says cannot disclose confidential info that is protected by rules
Just don’t restate anything false in closing argument
Who can you solicit
Lawyers, family member, close friend, or someone that the soliciting lawyer had a professional relationship with
Integrity of other attorneys
CA: no duty to report attorney wrongdoing
ABA: duty if actual knowledge
