Professional Responsibility Flashcards
Mandatory Withdrawal
- Resulting Violation of ethical rules or laws.
- L’s mental/physical Health (MR: materially impairs; CA: unreasonably difficult
- CA: Bad faith assertions by the client (no P.C. or to harras)
Permissive Withdrawal
1) Crime/Fraud
2) Past Crime/Fraud
4) C makes representation unreasonably difficult
5) Other good cause
6) For any reason, so long as it does not materially harm C
MR:
1) Fundamental disagreement with C’s course of action
2) Representation causes unreasonable financial burden
CA:
1) C’s claim is not supported under existing law and no good faith argument’s for modification/reversal
2) C’s consent
3) Inability to work with co-counsel
4) L’s mental/physical condition renders it difficult for L to carry out the representation effectively
5) Continued representation is likely to violate CA rules
Basis of Rate of Fee’s
must be reasonable when considering difficult, preclusion of other employment, L’s expertise, customary fee for similar services
CA Fee Requirement
If total expenses are over $1,000, then the fee agreement must
1) be in writing
2) A copy given to the client
3) the writing must include the basis of compensation, nature of legal services, and contractual responsibilities of L and C
Exceptions to the CA writing requirement
1) Corporate C
2) C waives written contract after full disclosure
3) fee implied by previous services rendered;
4) emergency
Fee Splitting
MR: fee in proportion to services rendered, C’s written consent, total fee charged reasoanble
CA: Ls enter into written agreement to split fee; C’s written consent after full disclosure; total fee not higher solely because of splitting
Referral Fees
CANNOT compensate for a referral, but you may
1) Pay for permitted advertisement
2) pay for an approved legal referral service
3) refer pursuant to an agreement that provides referrals so long as it is a) not exclusive; b) client is informed
CA: May give gifts, so long as the gift is would not encourage future referrarls.
Client’s Funds
Gotta keep it separated.
Keep records for five years
Dispute over funds->disperse not disputed and keep rest in trust account
Duty of Confidentiality: Permitted Disclosures
1) Death/Substantial Bodily Harm
MR: allows disclosure to prevent “reasonably certain” death/substantial bodily harm
CA: allows disclosure reasonably believed necessary to prevent a criminal act that L reasonably believes will result in death or substantial bodily harm. Before disclosure, must try to persuade C to not commit act
2) Substantial Financial Harm to another
MR only, not applicable in CA
3) Securing legal advice
4) L-C controversy
5) Compliance with court order
Duty of Loyalty: Concurrent Conflict
A concurrent conflict exists when
1) representation is directly adverse to another client;
2) significant risk lawyer’s representation will be materially limited due to his personal interests OR responsibilities to another present/former client or third party
How to cure a conflict
1) Lawyer reasonably believes that he will be able to provide competent and diligent representation
2) representation not prohibited by law
3) not representing parties on opposite sides of the same litigation
4) informed consent (CA: informed written consent; MR: Informed consent, confirmed in writing)
CA written disclosure Requirement
An attorney must provide written dislosure, even if there is no significant risk that the representation will be limited, when the lawyer
1) has a legal, business, financial, professional, or personal relationship to a party or witness in the same matter
2) knows or reasonably should know that another party’s lawyer is a family member, lives with, or is a client of the lawyer or has a personal relationship with the lawyer
Conflict of Interest: Former Client
L cannot represent a new C in the same or substantially related matter as a former C if new C’s interests are materially adverse to the former C’s interests
May be cured by requisite steps
Business Transactions with Client
Not permitted unless
1) terms fully disclosed in writing
2) Fair and reasonable to C
3) C is advised in writing need for counsel and given opportunity to seek independent counsel
Limiting Malpractice
MR: permitted if C represented by independent counsel
CA: prohibited
Settling Malpractice
OK only if C given reasonable opportunity to seek independent counsel
Former Government Employees
Cannot represent client in matter in which L participated personally and substantially participated in without informed consent (cA: informed consent, confirmed in writing; MR: informed written consent) of government agency.
Lawyer Switches Firms with Conflict Rules
L cannot accept employment materially adverse to C from a former law firm when
1) L has obtained confiedntial material to the new matter
2) without informed consent
Screening
Conflict will not be imputed if disqualified L is
1) screened
2) given no share of fee
3) Client is given notice and certification of compliance with screening
CA: L must not have substantially participated in the same or substantially related matter
Personal conflicts do not count
3rd Party payments to L
Not permitted unless
1) C gives informed consent
2) no interference with L’s judgement
3) confidentiality is preserved
Dual representation of organization and employees
Permitted as long as
1) No other conflict exists
2) L must explain C’s identity to constituents when organizations interests are or may become adverse to those constituents
Reporting Misconduct inside Orgnization
Up and out
MR: if higher authority fails to act, AND it is a clear violation of the law and the organization will suffer substantial harm, L may report out
CA: “” L may not report out, can only resign
Duty of Competence
A lawyer owes his client the duty of competence which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client
Duty of Competence: Unfamiliar area of law
L cannot take case in unfamiliar area of law unless he gains competence by
1) Associating with a competent lawyer
2) acquire sufficient learning and skill before performance is required
Duty of Competence: Violations
Exposes lawyer to
1) discipline by the bar
2) disqualification
3) Malpratcie
Duty of Competence: CA specific
Attorney subject to discipline only if he act intentinoally, recklessly, or with gross negligence, or repeatedly fails to perform legal services competently
Myst keep abreast of changes in the law
Duty of communication
Lawyer must keep client reasonably informed about any significant developments relating to the representation
Duty of Diligence
MR: L shall act with reasonable diligence and promptness
CA: CANNOT intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence
Inadvertent Disclosure
L must make reasonable efforts to prevent inadvertent disclosure
Proprietary Interests in a Case
MR: Cannot acquire proprietary interests in COA OR subject matter of litigation UNLESS
1) lien authorized by law for lawyer’s fee/expenses
2) contract for a contingency fee in civil case
CA: No counterpart, but retaining liens are not allowed.
Loans to Clients
Lawyer cannot provide financial assistance to client except
1) advancing litigation costs/expenses in contingency
2) advancing indigent client’s litigation costs/expenses
3) (CA) personal loan to client, after lawyer is retained, with a written promise to repay client and compliance with relevant ethical rules
MR: no loans
Duty of Candor to the Court
Lawyer cannot engage in conduct involving dishonesty or fraud. A lawyer cannot knowingly
1) make a false statement of fact/law to a tribunal
2) fail to correct a false statement of material fact/law previously made
3) fail to disclose controlling legal authority
4) offer to use evidence that the lawyer knows to be false
If L knows/learns he has offered false material evidence (including testimony, L must take remedial measures (CA: can’t disclose confidential information)
Witness Perjury
Lawyer CANNOT call a witness he knows will commit perjury.
Criminal D has a right to testify. If lawyer knows he will commit perjury, L should
1) try to disuade client from commiting perjury
2) attempt to withdraw
3) ABA: tell the court; CA: allow C to testify in narrative fashion
Lawyer has discretion if he reasonably believes, but does not know, the testimony is false
Payments to Witness
Generally not allowed.
May pay witness for
1) expenses reasonably incurred (travel; hotel; meals
2) reasonable compensation for loss of time
3) reasonable fee to an expert witness
Lawyer as witness
Cannot act as trial counsel when L is likely to be a necessary witness UNLESS
1) testimony relates to uncontested issue
2) testimony relates to the nature and value of legal services
3) ABA: lawyer’s disqualification would create a substantial hardship to client
4) Lawyer has informed written consent of client
Extrajudicial Statements to Public
CANNot make extrajudicial statments to public which
1) Lawyer knows/should know
2) will be disseminated by means of public communication
3) will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors
Exceptions
1) Correct recent prejudicial publicity that was not self-initiated
2) State basic facts about the case (claim, offense, defense, public record)
3) Inform public of ongoing investigation
4) request assistance in obtaining evidence
5) warn of danger
Prosecutors: Extrajudicial statements
P’s must exercise reasonable care to prevent others under their supervision/direction from making extrajudicial statements prosecutor would be prohibited from making
Special Rules for Prosecutors
1) May only proceed with P.C. (sufficient facts lead a reasonable person to believe that a crime was committed and D committed the crime)
2) Timely disclose exculpatory/mitigating evidence
3) make reasonable efforts to assure accused has been avised of right to counsel
4) cannot seek to obtain waiver of important pretrial rights from unrepresented accused person
5) MUST seek remedy to a conviction when he knows of C&C evidence establishing that convicted D did not commit the crime
6) MUST promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted D did not commit the crime
Sharing legal Fees with Non-Lawyers
Can’t do it except for
1) death benefits paid to deceased lawyers estate
2) payments’ to lawyer’s estate for purchase of practice
3) compensation for retirement plan payments to non-lawyer employees
4) court awarded legal fees with non-profit org
5) lawyer referral service operated in CA
Advertising Legal Services
Permitted in all formats if
1) not false/misleading
2) identifies at least one lawyer or law firm responsible for content
3) does not state/imply that the lawyer is certified as a specialist unless they are
4) CA: clearly states advertisement unless it’s apparent it is one
Solicitation
Lawyer CANNOT solicit in person, through the phone, or through real-time electronic contact when motive is for pecuniary gain UNLESS THE PERSON
1) is a lawyer
2) has a family, close persona, or prior business relationship
3) MR: routinely uses the type of legal services offered for business purposes
“Reasonable Diligence”
A lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard or unduly delay any matter entrusted to the lawyer. However, a lawyer is not bound to press for every possible advantage that might be realized for a client.
Duty of Confidentiality
A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client.
