Professional Responsibility

Question 1

Duties owed to clients

Answer 1

Confidentiality, loyalty, fiduciary responsibilities, competence

“The attorney owed a duty of ____ to the client.”

*Clients Love Fierce Counsel; Courts Feel Differently

Question 2

Formation of client relationship

Answer 2

A person who consults with a lawyer about the possibility of forming a lawyer-client relationship with respect to a matter is a prospective client. A lawyer-client relationship is formed when a prospective client seeks legal services from a lawyer and the lawyer either agrees to provide services or fails to clearly decline services.

Question 3

Organization as the client

Answer 3

A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. A lawyer with an organization as a client is not representing the individual members of the organization, and could potentially violate the duty of confidentiality.

Question 4

Duty of competence

Answer 4

A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. A lawyer can make himself competent through reasonable preparation or in by associating with a lawyer of established competence in the field.

In CA, a lawyer must not intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence. Additionally, a lawyer must competently supervise their employees.

Question 5

Allocation of authority

Answer 5

Under the ABA and CA rules, a lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. The client is responsible for determining their goals for the representation, and the lawyer controls the legal strategy and tactical means of achieving those objectives.

(The client must be told of all settlement offers, and only they can decide to accept or deny.)

Question 6

Duty of diligence

Answer 6

A lawyer shall act with reasonable diligence and promptness in representing a client.

In CA, a lawyer cannot intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing their client.

Question 7

Duty of communication

Answer 7

A lawyer must keep the client reasonably informed about any significant developments relating to the representation. A lawyer must promptly inform the client of any decision requiring informed consent, consult regarding objectives, and promptly comply with reasonable information requests. A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 8

Reasonable fee

Answer 8

A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include time, difficulty of the case, and expertise of the lawyer, degree of specialty required, preclusion of other work, amount of fee, the relationship with the client, and the results obtained.

Question 9

Fee agreements

Answer 9

A lawyer shall not charge or collect an unreasonable fee.
(In CA, unconscionable or illegal)

Written fee agreements are advisable under the ABA rules and mandatory in CA unless the fee is $1k or less, the work is routine, the client is a corporation, or client waives the requirement for a writing.

Question 10

Fee sharing between lawyers

Answer 10

Fees can be shared between lawyers not in the same firm if the division is in proportion to the service provided, the client consents in writing, and the total fee is reasonable.

In CA, in addition, (1) the feed cannot increase because of the division, and (2) the fees aren’t unconscionable.

Question 11

Contingency fee agreements

Answer 11

These agreements state the lawyer’s fees will be paid out fo any recovery the client receives. The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted.

In CA, the writing must include how expenses not covered in the agreement will be charged and that fees are not set by law and are negotiable. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.

Question 12

Sharing fees with non-lawyers

Answer 12

Fees may not be shared, and a partnership may not be made with non-lawyers if any of their activities include the practice of law. (This doesn’t include companies that market the services of licensed attorneys.)

Question 13

Duty of confidentiality

Answer 13

A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation.

ABA: A lawyer may disclose confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing reasonably certain substantial crime or fraud, to secure legal advice for litigation between the layer and client, or to comply with court orders.

Question 14

Duty of financial integrity

Answer 14

A lawyer owes a duty of financial integrity to their client to bill appropriately and not to co-mingle funds.

Question 15

Potential conflicts of interest

Answer 15

Occurs when the lawyer suspects a conflict however representation is not materially limited.

ABA model rules do not require informed written consent, however, CA rules do.

Question 16

Conflict of interest – current clients

Answer 16

A lawyer SHALL NOT represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation is directly adverse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to person interests or reposibilities to other clients or third parties, unless (a) the lawyer reasonable believes he can provide competent representation, (b) not prohibited by law, (c) two party opponents are not represented by the same lawyer, and (d) each client gives informed consent in writing. Upon determining a conflict, the lawyer SHOULD request to withdraw.

In CA, both disclosure and consent must be in writing.

Question 17

Conflict of interest – former clients

Answer 17

Unless a former client gives informed consent, a lawyer cannot thereafter represent another person in the same or substantially related matter when the person’s interests are materially adverse to the interests of the former client.

Question 18

Business transactions with client

Answer 18

A lawyer shall not enter into a business transaction with a client or knowingly acquire ownership, possessory, security or other pecuniary interest adverse to a client unless:

the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client, the client is advised to consult with outside counsel and is given reasonable opportunity to do so, and the client consents in writing.

Question 19

Gifts

Answer 19

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer is related to the client.

Question 20

Duty of loyalty

Answer 20

A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts. If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel. The model rules encourage advisement in writing, that the client be advised of the conflict and waive their rights related to these conflicts.

In CA, writing is required when an attorney represents clients with actual or potential conflicts.

Question 21

Permissive withdrawal

Answer 21

Under ABA rules, a lawyer may seek to withdraw if it can be done without materially harming the client. If it will harm the client, a lawyer may only withdraw if (1) the client persists in the crime or fraud, (2) lawyer learns previous services were used to perpetuate crime, (3) lawyer finds course of action repugnant, (4) client fails to pay, (5) representation will lead to a financial burden on the lawyer, (6) client has made representation unreasonably difficult, and (7) good cause.

Question 22

Mandatory withdrawal

Answer 22

A lawyer shall not represent a client, or if representation has commenced, a lawyer shall withdraw when, (1) the lawyer knows or should know the client is bringing an action, conducting a defense asserting a position or taking an appeal without probable cause and for harassing purposes, (2) they know the representation will result in violation of ethical rules, (3) their mental or physical condition renders it unreasonably difficult to carry out the representation effectively, or (4) if discharged.

Question 23

Withdrawal in CA

Answer 23

If the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. The lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment.

ABA and CA rules require the lawyer obtain court approval if they seek withdrawal after the action was filed. (Often denied if it will harm the client)

Question 24

Termination of representation

Answer 24

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.

Question 25

Duty of candor to the court

Answer 25

A lawyer shall not knowingly make a false statement of fact or law to a tribunal by the lawyer, or fail to disclose to the tribunal legal authority known to be adverse or offer evidence known to be false.

In CA, a lawyer is required to employ only means consistent with the truth, and never seek to mislead any judicial officer with false statements.

Question 26

Duty of fairness to the opposing party

Answer 26

A lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

Question 27

Communication with represented parties

Answer 27

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Question 28

Duty of client candor remedial measures

Answer 28

If a lawyer knows of false testimony of a client during a deposition, the lawyer must take reasonable measures to remonstrate the client confidentially, advise the client of the lawyer’s duty of candor, and seek the client’s assistance to correct.

Question 29

Lying clients

Answer 29

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging in, or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.

In CA, during criminal trials, the lawyer may allow the client to testify in the narrative without disclosing perjury.

Question 30

Malpractice insurance

Answer 30

A lawyer may not agree to limit their liability without advising the client in writing to seek independent counsel.

In CA, a lawyer may NOT limit their malpractice liability.

Question 31

Reporting professional misconduct

Answer 31

A lawyer who knows that another lawyer/judge has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honest, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority.

In CA, a lawyer is required to report fraud, misappropriation of funds, and other criminal acts or conduct that raise a substantial question about another lawyer’s honesty, trustworthiness, or fitness as a lawyer. Also, a lawyer must self-report if (1) charged with a felony, (2) convicted of a serious crime, (3) found guilty of a crime committed in a professional capacity, (4) disciplined, (5) sanctioned for more than $1,000 or more, (6) sued for malpractice, (7) a court judgment finds the lawyer grossly incompetent or willfully misrepresented a client.

Question 32

Third party payments

Answer 32

Allowing a third party to pay for legal fees is permissible, as long as such an agreement prohibits the third party from controlling the course of the representation. The third party has no privilege to be apprised of the case or of any confidential communication. Here, the client must give informed consent.

In CA, this consent must be in writing.

Question 33

Referrals

Answer 33

ABA – A lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients.

In CA, referral fees can be paid if the client consents in writing, the fee does not increase the cost to the client, and if not unconscionable.

Question 36

Advance of expenses

Answer 36

Under both ABA and CA rules a lawyer may advance litigation expenses. The agreement must be in writing and must state that the advance is a loan requiring repayment.

In CA, a lawyer is permitted to loan the client funds, but must have a written agreement and the loan cannot be used to entice the client to engage the lawyer’s services.

Question 36

Solicitation

Answer 36

A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer’s doing so is the lawyer’s or law firm’s pecuniary gain, unless the contact is with a lawyer, friend, family, or if they routinely use such servies.

Question 37

Assisting non-lawyers in the unauthorized practice of law

Answer 37

A lawyer who assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules.

In CA, a lawyer must not employ, associate, or practice with, or assist a person the lawyer knows or reasonbly should know is a disbarred attorney to engage in the practice of lawy, but can hire them to perform paralegal duties.

Question 38

Inadvertent receipt of documents

Answer 38

A lawyer sho receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently send shall promptly notify the sender.

Question 39

Trial publicity

Answer 39

A lawyer who participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be dismantled by means of public communication and will have a substantial likelihood of materially prejudicing the matter.

Exceptions – statements to limit adverse publicity, when limited to the claim, defense, or identification of person, when in a public record, warning of danger or information necessary for apprehension.

Question 40

Sexual relations

Answer 40

A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Question 41

Ex parte communication with the judge/officials in capacity

Answer 41

A lawyer is not permitted to communicate ex parte with the persons serving in an official capacity in the proceeding, except for logistics and emergency information.

Question 42

Conduct involving deceit, dishonesty, fraud, or misrepresentation

Answer 42

Under the ABA rule, it is professional misconduct for a lawyer to engage in any of these activities.