Professional Responsibility Flashcards
Mandatory Withdrawal
Must withdraw if:
1. Continuing would result in violating ethical rule
2. Assisting client in crime/fraud
CA - knows/should know the client is asserting a claim/defense without probable cause and for purpose of harassing or maliciously injuring someone
Permissive Withdrawal - ABA
CLCCR - claccer
Anytime without materially harming client
Even if harm, can withdraw if:
1. Client engages in crime/fraud
2. Lawyer learns client used his services for crime/fraud
3. Client insists on course of action lawyer finds repugnant or fundamentally disagrees with
4. Client has made representation unreasonably difficult
5. Rep will result in unreasonable financial burden
Permissive Withdrawal - CA
Can only withdraw when:
1. Client insists on claim not warranted under law or supported by argument for changing the law
2. Client seeks to pursue crime/fraud or uses lawyer’s services for crime/fraud
3. Client insists lawyer engage in crime/fraud conduct
4. Client has made rep unreasonably difficult
5. Continued rep will violate ethical rules
Fee Rules
ABA + CA
Lawyers must charge reasonable fees
ABA - reasonable under the circumstances
CA - not unconscionable and must be in writing signed by both parties
Contingent Fee Agreement Requirements
- In writing
- Signed by client
- State expenses client is liable for
If void –> lawyer entitled to reasonable fee
Fee Splitting
ABA + CA difference
Allowed if:
1. Fee is proportional to services provided by each lawyer - CA - lawyer has written agreement
2. Client provides written consent after disclosure, and
3. Total fee charged is not unconscionable
Referral Fees
ABA
Prohibited unless part of a legal services plan or approved lawyer referral service
Can give nominal gifts of appreciation for referral
Referral Fees
CA
Can give thank you gift for referral provided it is not offered in anticipation of referral or future referrals
Duty of Confidentiality + Exceptions
Cannot disclose anything relating to representation unless (1) authorized by informed consent or (2) impliedly authorized to carry out rep
ABA -
1. Prevent death or substantial bodily harm
2. Prevent financial harm by client’s crime/fraud
CA
1. Prevent criminal act lawyer reasonably believes will result in substantial bodily harm
Work Product Doctrine
ABA + CA
Material created by attorney in anticipation of litigation is not discoverable unless opposing party shows need
CA - lawyer’s impressions, conclusions, opinions, theories, research = not discoverable ever
Personal COIs
Cannot represent a client if representation may materially limit lawyer’s own interest unless:
1. Lawyer reasonably believes (sub & obj) they can provide competent and diligent representation
2. Rep not prohibited by law
3. Client gives informed consent in writing (CA) or confirmed in writing (ABA)
COI Current Clients
Cannot represent a client if doing so would be directly adverse to current client or representation will materially limit lawyer’s rep of current client UNLESS
1. Reasonably believes (sub & obj) they can provide competent and diligent rep to each client
2. Rep is not prohibited by law
3. Rep does not involve repping both sides in same proceedings, and
4. Informed consent
COI - Current & Former Client
Cannot rep someone else later in the same or substantially similar matter if party’s interest is materially adverse to former client’s interests UNLESS
1. Informed consent
CA - Reporting Out
Cannot reveal confidential info outside of organization unless death or substantial harm exception to duty of confidentiality rule applies
Does not include financial harm
Duty of Diligence - CA
Lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client
