Professional Responsibility

Question 1

When is there a duty to reject representation?

Answer 1

ABA/CA: When representation would violate an ethical rule or the law.

CA: When L knows/should know there is no probable cause to bring the action AND the action is being brought to harass or maliciously injure a person.

ABA/CA: L must not bring a claim that is not warranted under existing law, unless it can be supported by a good faith argument seeking a change in the law.

Question 2

When does the L-C relationship begin?

Answer 2

When the client reasonably believes the relationship begins. A formal writing is not required.

Question 3

What are the duties of L and C regarding settlement offers?

Answer 3

Only the client has the authority to make the decision to reject/accept a settlement offer.

L must communicate all bona fide settlement offers to C.

Question 4

L’s strategy in representation

Answer 4

L has authority to make decisions about strategy to achieve C’s goals.

L must reasonably consult with C and keep them reasonably informed about the case status.

Question 5

What must L do if C is engaging in criminal/fraudulent conduct?

Answer 5

L must not counsel or assist C in criminal/fraudulent conduct.

L must stop assisting the client and withdraw from representation.

Question 6

Termination of Representation

Answer 6

C has an absolute right to discharge L for reason or no reason. L must withdraw if discharged, unless ordered otherwise by a court.

Question 7

When MUST L withdraw from representation?

Answer 7

When failure to do so would result in violating ethics or other law.

When C asks L to engage in criminal or fraudulent activity.

CA: If he knows/should know the client is asserting a claim/defense w/o probable cause and for the purpose of harassing or maliciously injuring a person.

Question 8

Under the ABA, when MAY L withdraw from representation?

Answer 8

At any time if he can do so without materially harming C.

L can withdraw, even if harm will result, when:

• C engages in criminal or fraudulent conduct
• L learns C used his services to commit criminal/fraudulent action
• C insists on a course of action that L finds repugnant or which L has fundamental disagreement with
• C has made representation unreasonably difficult
• Representation will result in an unreasonable financial burden on L

Question 9

Under CA rules, when MAY L withdraw?

Answer 9

• C insists on presenting a claim or defense not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law;
• C either seeks to pursue criminal/fraudulent conduct or has used L’s services to advance conduct L reasonably believes was a crime/fraud.
• C insists that L pursue a course of conduct that is criminal or fraudulent.
• C, by other conduct, renders it unreasonably difficult for L to carry out the representation effectively, OR
• Continuation of representation is likely to result in violation of CA rules or state bar act.

Question 10

What is the procedure for L’s withdrawl?

Answer 10

1. Give C reasonable notice
2. If litigation is pending, must get court approval
3. Court may order L to continue representing if withdrawal would materially harm C’s case

Question 11

What must L do upon termination?

Answer 11

• Return all papers and property to C
• Safeguard C’s property and papers from damage while in his possession
• Under ABA, L may retain papers to obtain payment in limited circumstances
• Under CA rules, L must return of all papers and property
• Return any advanced fees that were not earned

Question 12

Fees, generally

Answer 12

ABA: must not be unreasonable
CA: must not be unconscionable

Question 13

When must fee agreement be in writing?

Answer 13

CA: if fees exceed $1000, AND:
1. be in writing
2. state fees and services to be provided
3. signed by BOTH parties, AND
4. provide written copy to C/C’s rep

*Writing not required when C is a corporation
*All contingency fee agreements must be in writing

Question 14

When are/are not contingent fees permitted?

Answer 14

Generally permitted, but are not allowed in:

• Criminal cases
• Domestic cases when fee is contingent on obtaining divorce or on the amount of support recovered

Question 15

What does a contingent fee agreement require?

Answer 15

1. Writing, signed by C
2. Terms of calculating fees, AND
3. Expenses that C is liable for

CA: Duplicate copy signed by C and L to be provided at signing

Question 16

When is fee splitting allowed?

Answer 16

ABA: when…
- fee is in proportion to the services provided by each L
- client agrees in writing
- charged fee is reasonable

CA: when…
- Ls enter written agreement to divide fee
- C provided written consent after full disclosure of splitting
- total fee charged is not unconscionable

Under both, fees must not be higher because multiple attys are working on the case.

Question 17

Are referral fees allowed?

Answer 17

ABA: Generally prohibited, unless:
1. paying fees of a legal services plan, OR
2. approved lawyer-referral service

CA: L may give gift or gratuity for a referral, provided that the gift or gratuity was not offered in anticipation of the referral or future referrals.

Question 18

Commingling of funds

Answer 18

L must keep C property separate from their own.

No funds belonging to L or law firm may be deposited in a client trust account or otherwise commingled with client funds, except for funds reasonably sufficient to pay bank charges.

Question 19

Dispute over funds

Answer 19

L must distribute the undisputed funds to the C and keep disputed funds in C’s trust account.

Question 20

L-C privilege

Answer 20

Applies in judicial and other legal proceedings in which L may be called as a witness or otherwise asked to provide evidence relating to C.

Question 21

When are confidential communications between C&L privileged?

Answer 21

1. C must intend for communication to be confidential; AND
2. Communication must be for the purpose of seeking legal advice and representation.

C holds the privilege, and L must assert it on C’s behalf.

Question 22

How long does the L-C privilege last?

Answer 22

ABA: indefinite, survives C’s death
CA: until D’s estate is settled and personal rep is discharged

Question 23

Exceptions to the L-C privilege

Answer 23

ABA: no privilege when communication relates to C’s future crime or fraud

CA:
- applies to future crime or fraud committed by anyone, not just the client
- when L reasonably believes that disclosure of any confidential communication relating to L’s rep is necessary to prevent a criminal act that L reasonably believes is likely to result in the death or substantial bodily harm of an individual

Question 24

What is work product?

Answer 24

Material created by L in anticipation of litigation.

CA: writing that reflects L’s impressions, conclusions, opinions, or legal research or theories –> not discoverable under any circumstances

Other lawyer WP is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that’s claim/defense or will result in an injustice.