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Professional Responsibility > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Solicitation

A

Communication initiated by a lawyer that is directed to a specific person he lawyer knows or reasonably knows is in need of legal services for a particular matter.

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2
Q

When is Solicitation of prospective clients in person, by live telephone, or by real time electronic contact prohibited in CA?

A

When a significant motive for the lawyers action is the lawyers pecuniary gain, unless the person is a lawyer, or has a relationship with the soliciting lawye

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3
Q

Do the MR prohibit real-time electronic contact?

A

No.

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4
Q

Lawyer-Client Relationship - Acceptance/Rejection of Clients

A

No duty to accept representation

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5
Q

When does the Attorney client relationship begin?

A

When the client reasonably believes the relationship exists

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6
Q

Settlement Offers (MR and CA)

A

MR- L must communicate all settlement offers to C and C makes final decision

CA- L must communicate written settlement offers or an oral offer in a civil matter if it is a significant development

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7
Q

Mandatory Withdrawal - Resulting Violation- MR and CA

A

MR- L must withdraw if failure to withdraw would result in violating the ethics duties or other laws

CA- L’s physical or mental condition makes it unreasonably difficult to carry out the representation effectively

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8
Q

Mandatory Withdrawal- Health both MR and CA

A

MR- L’s physical or mental condition materially impairs his ability to represent C

CA- L’s physical or mental condition renders it unreasonably difficult to carry out the representation effectively

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9
Q

Mandatory WD- C’s bad faith (CA only)

A

C hired L to assert a claim without probable cause or to harass or injure another person

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10
Q

Permissive WD (CA and MR) - No harm

A

MR- L may withdraw if it does not materially harm C

CA- L cannot withdraw merely because it won’t materially harm C

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11
Q

Permissive Withdrawal with material harm (CA and MR)

A

MR- L reasonably believes C’s actions are criminal/fraudulent, used services to perpetrate a crime, rep will cause unreasonable burden (Not CA), C fails to pay or fulfill other obligation, C makes rep. unreasonably difficult, other good cause exists.

CA- Not supported under existing law, makes rep unreasonably difficult,C assents to termination

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12
Q

Duties Upon Termination

A

MR- L can retain papers as security for fee

CA - must return all papers regardless of fees

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13
Q

Fees Generally

A

Fees must be reasonable, based on the difficulty of time, labor, novelty and skill necessary, preclusion of other employment.

Fees must not be unconscionable

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14
Q

Fees (writing requirement)- CA

A

Must be in writing, signed by both parties when the total expenses are over $1000

Contents of writing (basis of compensation, nature of legal services, contractual responsibilities of C and L)

Failure to comply- contract is voidable by C and L

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15
Q

Contingent Fees Prohibited

A

Criminal Cases

Domestic Relations - if the fee is contingent on obtaining a divorce or amount of support recovered

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16
Q

Contingent Fee Requirements (CA and MR)

A

MR- Must be in writing and include signature of C, fee calculation methodology

CA: Must be in writing and signed by BOTH, L and C.
Must include rate, how costs will affect the fee and C’s recovery

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17
Q

Fee Splitting between lawyers of different firms (MR and CA)

A

MR- Fee in proportion to services rendered, requires written consent and total fee charged is reasonable

CA- L’s enter into written agreement to divide the fee, C’s written consent after full disclosure, and total fee not higher solely because of fee splitting.

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18
Q

Referral Fees (MR and CA)

A

MR- Not permitted for mere recommendations

CA- L may offer or give a gift to a person having made a recommendation resulting in the employment of the L
– Cannot be given in consideration for a referral that would be encouraged in the future

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19
Q

Lawyer Client Privilege Elements

A

Confidential (C intended for communication to be confidential)

Communication (made for purpose of seeking legal advice).

C holds privilege- only C can waive and L must assert on C’s behalf

Duration- forever (CA- terminates when C’s estate is settled)

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20
Q

Exceptions to Lawyer-Client Privilege

A

C’s future crime/fraud- in CA, can be committed by anyone, not just C

Disputes between L and C

Information likely to result in substantial bodily injury or death

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21
Q

Professional Obligation of Confidentiality MR and CA

A

MR- Lawyer prohibited from disclosing info relating to rep of C, or info that could reasonably lead the discovery of protected info by a third party, unless C gives informed consent

CA- Lawyer required to maintain the confidence at every peril to himself to preserve the secrets of the C; L can only reveal info if C gives informed consent or L reasonably believes disclosure necessary to prevent criminal act likely to result in death or substantial bodily harm

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22
Q

Exceptions to Confidentiality (MR and CA)

A

MR- allow disclosure to prevent “reasonable certain” death or 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

CA- Before disclosure, L must make good faith effort to persuade C not to commit/continue the criminal act or prevent the threatened death or bodily harm

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23
Q

Substantial Financial Harm to Another (MR only)

A

MR- Disclosure is permitted if L reasonably believes it is necessary to prevent, mitigate or rectify C from using L’s services to cause substantial harm to another

No CA rule on point

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24
Q

Conflict of Interest by lawyers personal interest (general)

and exceptions

A

L must not represent C if there is a substantial risk that rep may be materially limited by L’s own interests unless

(1) L reasonably believes he can provide competent/diligent representation

(2) The representation is not prohibited by law

(3) Informed Consent, confirmed in writing (MR), or informed written consent (CA)

(4) The rep does not involve the assertion of a claim by one client against another client represented by the same lawyer

25
Q

Business Transactions with Client

A

Business transactions with C or adverse interest—not permitted unless the terms are fully disclosed (and understood by C) in writing, and fair/reasonable to C, and C is advised in writing of desirability of having and given an opportunity to seek independent counsel

26
Q

Soliciting Gifts

MR and CA rules

A

MR—Lawyer cannot solicit a gift or prepare an instrument giving a substantial gift to L (unless related)

CA—follows MR; in addition, L may also prepare such an instrument, if client has been advised by independent legal counsel, even if C is not related to L who prepares the instrument

Under both rules, unsolicited gifts are generally acceptable if they meet general
standards of fairness

27
Q

Conflicting Interests requirements/exceptions

A

L cannot represent Cs with directly adverse interests or represent C if there is a significant risk that representation of C will be materially limited by L’s responsibilities to a current C unless:

  1. L reasonably believes (subjective and objective standards) that he can provide competent/diligent representation,
  2. The representation is not prohibited by law,
  3. C is not asserting a claim against another C in the same litigation, and
  4. Cs give informed consent, confirmed in writing (MR) or informed written consent (CA)
28
Q

Current and Former Clients (COI)

A

L cannot represent a new C in the same or a substantially related matter as a former C if new C’s interests are materially adverse to the former C’s interests (unless former C gives informed consent, confirmed in writing (MR) or informed written consent (CA))

29
Q

L switches Private Firms - Limitations on New Firm

A

L cannot accept employment materially adverse to C from
a former law firm when L has obtained confidential information material to the new matter without former C’s informed written consent (CA) or informed consent, confirmed in writing (MR)

30
Q

Imputed Disqualification

A
  1. Law firm is disqualified unless the prohibition is based on a personal interest of L and there is no significant risk of materially limiting representation of C
  2. C can waive disqualification if L reasonably believes he can provide competent/diligent representation, the representation is not prohibited by law, L is not representing two Cs with claims against each other in the same litigation, and C gives informed consent,
    confirmed in writing (MR) or informed written consent (CA)
31
Q

Duty to Avoid Frivolous Claims

A

Lawyers are prohibited from defending an action or issue in an action unless there is a basis in law and fact. A good faith argument for an extension, modification, or reversal of existing law is not frivolous.

32
Q

Duty of Subordinate Lawyers

A

Under both MR and CA, a subordinate lawyer must conform to the ethic rules even if acting under the direction of a supervising lawyer. The subordinate lawyer does not violate the ethics rules, however, if he acts in accordance with the supervising lawyers reasonable resolution of an arguable question of professional duty.

33
Q

How to determine whether a supervising lawyers resolution is reasonable?

A

the subordinate lawyer has a responsibility to undertake his own analysis of the law applicable to the supervising lawyer’s conduct.

If an ethical issue can be reasonably answered in only one specific way, it will not constitute an arguable question.

If the issue is ambiguous, on the other hand, then the subordinate lawyer will not be in breach of his ethical duties by following the supervising lawyers instructions.

34
Q

Corporation as a Client

A

An attorney may represent a corporation as a client. The corporation, not the officers, is the actual client and the attorney must not mislead the officers into believing that the attorney represents them personally.

35
Q

Duty to Report other Lawyers

Both MR and CA

A

Under the MR, a lawyer is required to report misconduct by another lawyer to the appropriate authority when the lawyer has actual knowledge of the misconduct, and it concerns material matters of clear and weighty importance that raise a substantial question as to the lawyer’s honesty or professional fitness. Under the MR, a lawyer who fails to report misconduct by another lawyer will be subject to discipline.

In CA, there is no duty to report other lawyers, but there is a duty to self-report.

36
Q

Screening MR

A

Under the MR, any COI that arises from the lawyers association with a prior law firm will not be imputed to the lawyers new firm if (1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, (2) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and (3) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.

37
Q

Screening CA

A

Under the CA, any conflict of interest that arises from the lawyers association with a prior law firm will not be imputed to the new lawyers firm if (1) the prohibited lawyer did not substantially participate in the same or substantially related matter, (2) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and (3) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.

38
Q

Competence (MR and CA)

A

Under MR, the lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.

In CA, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence.

Under both CA and MR, a lawyer can make himself competent through reasonable preparation or by associating with a lawyer of established competence in the field.

39
Q

Diligence

both CA and MR

A

Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client.

In CA, a lawyer must not intentionally, repeatedly, recklessly, or with gross negligence (RIGR) fail to act with reasonable diligence in representing a client.

40
Q

Duty of Candor

A

Under the MR and CA, a lawyer representing a client in any proceedings of a tribunal has a duty of candor. Under MR, the duty of candor applies if compliance requires disclosure of information otherwise protected by the ethical duty of confidentiality. A lawyer must not knowingly make a false statement of law to the court.

41
Q

Reporting Organizational Misconduct

A

Under the Model Rules if the lawyer reports to the highest authority and the authority refuses or fails to act in a timely manner, and it is a clear violation of law and the lawyer reasonably believes the violation is reasonably certain to cause substantial injury to the organization, the lawyer MAY (not required) reveal information to outside authorities to the extent necessary to prevent the injury.

Under the CA Rules, if the highest authority refuses or fails to act, a lawyer may have a right or duty to resign or withdraw.

The CA Rules do not allow the lawyer to reveal confidential information to outside authorities unless the Death or Substantial Harm exception to the Duty of Confidentiality applies.

42
Q

Employing a Disbarred Attorney

A

Under the CA rules, a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred atty to: (1) render legal advice to client, (2) make appearances on behalf of a client, (3) appear as a representative of the client at a deposition or other discovery matter, or (4) engage in activities that constitute the practice of law. However, a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting or clerical activities.

43
Q

Supervision of Non-Lawyers

A

Under the MR and CA, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the unsupervised person’s conduct conforms to the ethics rules.

44
Q

Threatening a Claim to Gain Advantage (CA)

A

CA lawyers are specifically prohibited from, and subject to discipline for, threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.

45
Q

Duty to Communicate

A

Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.

46
Q

Duty of Confidentiality

A

Under the MR, the duty of confidentiality requires that an attorney must not reveal information relating to the representation of a client.

In CA, lawyers take an oath to maintain inviolate client confidences.

47
Q

Prosecutor Duties

A

The prosecutor’s responsibilities include:

the obligation to lay charges only when they are supported by probable cause,

to see that the defendant is accorded all of his constitutional due process rights, such as the right to counsel,

to seek a guilty verdict based on the evidence and a showing of proof beyond a reasonable doubt,

and to take special precautions to prevent and reverse the conviction of innocent defendants.

48
Q

Prosecutors: Statements about Accused

A

Except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, prosecutors must refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to others associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making.

49
Q

Referral Fee

A

The Model Rules generally prohibit payment to anyone for recommending a lawyer’s services with few exceptions. A referral fee given in return for merely recommending another attorney violates this rule.

However, in CA although a referral fee is generally impermissible, an exception exists for when an attorney gives a NOMINAL gift to a person for a referral that results in employment, so long as the gift was not given in consideration of any promise, agreement, or understanding that the gift would be forthcoming or additional referrals would be made or encouraged in the future.

50
Q

Fee Splitting non lawyer

and exceptions

A

Under the MR and the CA RPC, fees from activities constituting the practice of law may not be shared between lawyers and non-lawyers unless an exception applies.

The exceptions to this rule are

(i) if the non-lawyer is paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement;

(ii) the lawyer purchases the practice of a deceased, disabled, or missing lawyer to the estate or to the representative of that lawyer;

(iii) fees are shared with law-firm personnel though a compensation or retirement plan;

and (iv) the lawyer shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer in the underlying matter.

51
Q

Business Associations with NonLawyers

A

Under the MR and the CA RPC, a lawyer is not permitted to form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.

52
Q

Runners and Cappers

A

Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline.

In CA, use of such runners or cappers is a criminal violation. Any contract for runners and cappers is specifically void as illegal in CA.

53
Q

Sex with Clients

A

The MR and CA RPC prohibit a lawyer from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client at the time when the lawyer-client relationship commenced.

In CA, there is an express exception for sexual relations with a client who is the lawyer’s spouse or registered domestic partner.

54
Q

Under MR, where shall the lawyer hold clients personal property

A

Separate from his own property

55
Q

Duty to Protect and Preserve Evidence

A

The MR and CA RPC require that a lawyer must not unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.

56
Q

Procedure for Withdrawal

A

The procedure for terminating representation is to first provide the client with reasonable notice before withdrawing, to give the client a reasonable opportunity to obtain new representation.

57
Q

Work Product Doctrine- Absolute Privilege (CA)

A

In CA, a writing that reflects a lawyers impressions, conclusions, opinions or legal research or theories is not discoverable under any circumstances as it is protected by an absolute privilege

58
Q

Work Product Doctrine- Qualified Privilege

A

Other lawyer work-product is protected by a qualified privilege and is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim or defense or will result in an injustice

59
Q

Substantial Bodily Injury or Death Exception (CA and MR)

A

Under MR, disclosure is allowed if it would prevent reasonably certain death or serious bodily harm.

In CA, it is allowed but not required to disclose when it is reasonably believed necessary to prevent a criminal act that the lawyer reasonably believes will result in substantial bodily harm or death.

Professional Responsibility (2 decks)

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