Professional Responsibility

Question 1

What is the rule on employing a Disbarred Attorney?

Answer 1

Under the CA RPC, a lawyer may not employ a person the attorney knows or reasonably should know is ineligible (disbarred) to render legal services on a client’s behalf. An attorney may employ such a person in a position to conduct legal preparatory work but must notify the State Bar. 5.3.1

Question 2

What is the rule on unauthorized practice of law?

Answer 2

A lawyer shall not practice law in any jurisdiction where the lawyer is not authorized to practice law and may not assist others in doing so. 5.5

Question 3

What is the practice of law?

Answer 3

Under the ABA rules, the practice of law is the application of legal principles and judgment with regard to the circumstances or objectives that require the knowledge and skills of a person trained in the law.

Question 4

What is the rule on threats?

Answer 4

A lawyer shall not threaten to present criminal, administrative, or disciplinary charges o obtain an advantage in a civil dispute. 3.10

Question 5

What is the duty of frivolous claims?

Answer 5

A lawyer shall not present a claim or defense unless it is warranted under existing law unless there is a good faith basis to extend, modify, or reversal of such law. 3.1(a)(2)

Question 6

What is the rule on communication with a represented person?

Answer 6

A lawyer is not permitted to communicate about the subject of the representation with a person the lawyer knows to be represented by a lawyer in the matter unless the other lawyer gives consent or the law or court does so.

Question 7

What is the duty of competence?

Answer 7

A lawyer must perform their duties competently. Competence means to apply the learning, skill, and mental, emotional, and physical ability reasonably necessary for the performance of such services. Where a lawyer lacks such skill, they may undertake the representation if they can acquire it through learning, association with another attorney, or by referring the matter to a lawyer who is competent. 1.1

Note: In an emergency, a lawyer may reasonably undertake an otherwise prohibited representation in light of the emergency.

Question 8

What is the rule on curent conflicts of interest?

Answer 8

A lawyer generally shall not undertake a representation where there is a current conflict of interest. A conflict of interests exists where there is a significant change that the representation will be materially limited by the conflict. Where such a chance occurs, a lawyer may still undertake the representation where (1) the lawyer reasonably believes they can provide competent and diligent representation, (2) the COI is not prohibited by law, (3) the representation does not involve one client asserting a claim against another, and (4) the lawyer obtained informed written consent. 1.7

Note, in CA a lawyer cannot undertake a representation if the other party’s lawyer is a spouse, child, sibling, cohabitant or intimate of the lawyer.

Question 9

When is a lawyer required to withdraw?

Answer 9

Under CA RPC, a lawyer must withdraw if the representation will result in a violation of the RCP. This means will, not if avoidable. This includes competence and bad faith claims. A lawyer must also withdraw if discharged. 1.16

Question 10

When is withdraw permissive?

Answer 10

Under hte model rules, a lawyer may withdraw if doing so will not harm the client, however CA does not recognise this.

In CA, a lawyer may withdraw if:
(1) The client continues or uses services for crime or fraud.
(2) The lawyer finds the course of action repugnant or fundamentally disagrees
(3) The client fails to perform, including payment
(4) The representation is an unreasonable financial burden
(5) the representation is unreasonably difficult
(6) good cause

Question 11

What is the duty of communication?

Answer 11

A lawyer must keep the client reasonably informed of the status of their matter. In CA this includes informing the client of all significant developments.

Question 12

What is the duty of Candor to the tribunal?

Answer 12

A lawyer must not make a knowingly false statement of law or fact to the tribunal. When a lawyer learns that a previous statement of law made to a tribunal is false, they have a duty to correct it.

Question 13

What is the duty of Dilligence?

Answer 13

A lawyer must act with reasonable diligence. Reasonable diligence means acting with commitment and dedication and not neglecting, discarding, or unnecessarily delaying a legal matter entrusted to the attorney. It does not mean that an attorney must seek every possible advantage.

Question 14

What is the duty to supervise?

Answer 14

A lawyer with direct supervision of a lawyer or non-lawyer must make reasonable efforts to ensure that they comply with the rules of professional conduct.

Question 15

What is the duty of confidentiality?

Answer 15

The model rules recognize a duty of confidentiality to protect client confidence. In California, a similar duty arises under the State Bar Act.

Question 16

Whats the rule on communicating fees?

Answer 16

A fee agreement must be comunicated to the client before or a reasonable time after undertraining the representation.

In CA, a fee over $1K (or contingency) must (1) be in writing, (2) state the fee and services to be provided, (3) be signed by both parties, and (4) a copy must be given to the client or representative.

Writting does not apply to cooperation or regular clients.

Question 17

What is the duty of fairness?

Answer 17

A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document. IN CA this includes suppressing a document that the lawyer knows is discoverable.

Question 18

When is a lawyer subject to discipline for the misconduct of others?

Answer 18

A lawyer is subject to disciplin for the misconduct of another if:
1. They ratify the conduct
2. Order the misconduct
3. As a partner in a firm, if they know about the conduct at a time it can be mitigated and fail to do so.

Question 19

What is the rule on reporting misconduct?

Answer 19

Under the ABA, a lawyer has a responsibility to report misconduct that raises a substantial question about the lawyer’s honesty or professional fitness. CA does not have this requirement, but does require an attorney to report themselves if:
3 or more malpractice suits in a year
2. judgment for fraud, breach of fiduciary duty, gross negligence
3. charged in a felony
4. Conviction of felony or misdemenor related to practice
5. Sanction over $1K
6. Sanction by board
7. Reversal of judgment based on incompetent representation

Question 20

ABA V. CA Attorney Client Privlage

Question 21

ABA v. CA Confidentiality

Question 22

ABA v. CA False Testimony

Question 23

ABA v. CA Fees

Answer 23

Amount: Model Rule: Must be reasonable under the circumstances. CA Rule: Must not be unconscionable

Fee Splitting: Lawyers from different firms may split fees:
ABA: (1) Client agrees in writing, (2) fees are proportional, (3) Total fee is reasonable.
CA: (1) Lawyers enter a written agreement, (2) client gives written consent after full disclosure, (3) fee is not unconscionable
Both: Must not be higher because of multiple attornies.

Referral Fee: ABA: Generally prohibit paying a fee unless to a legal services plan or lawyer referral service
CA: May give a gift if not in anticipation of present or future referral.

Question 24

When does the Attorney-Client relationship form?

Answer 24

When the Client reasonably believes an attorney-client relationship has formed.

Question 25

What is the rule on solicitation?

Answer 25

A lawyer cannot solicit by live in-person communication or via real-time electronic communication. Unless the person is a lawyer or someone the attorney had a close personal or professional relationship with.

Additionally, it is a criminal violation to employ runners of cappers, who go to areas of potential business to solicit business for the lawyer.

Question 26

What is the duty of truthfulness?

Answer 26

In representing a client, a lawyer must not make any false statement of material fact or law to a third person. 4.1

Question 27

What is the rule on asserting personal knowledge?

Answer 27

A lawyer is prohibited from asserting personal knowledge of the facts at trial unless testifying as a witness.

Question 28

Can you disclaim the implied warranty of merchantability or fitness?

Answer 28

Yes, but only in conspicuous writing. For merchantability, you must use the term. “merchantability”