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CA Essay > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Duty of Loyalty

A

A lawyer has a duty of loyalty to his client that requires him to put the interest of his client above all other interests and to avoid any conflicts of interests.

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2
Q

Conflict of Interest: General Rule

A

A lawyer may not represent a client where there is a conflict of interest.

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3
Q

Conflict of Interest between current client and another

A

COI exists when there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by personal interest of the lawyer.

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4
Q

Exception to Conflict of Interest

A

A lawyer may still represent the client despite a conflict of interest if:

  1. The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client without an adverse effect; and
  2. The representation is not prohibited by law; and
  3. The clients are not asserting a claim against each other in the same litigation; and
  4. each client gives informed written consent (CA: informed consent, confirmed in writing)
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5
Q

CA Rule: Insurance

A

Lawyers are permitted to represent both insurers and insureds whereby the insurer has the contractual right to unilaterally select counsel for the insured, resulting in no conflict of interest.

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6
Q

Organizational Client

A
  • L must act in the best interest of the organization. L owes the duty of loyalty and confidentiality to the organization
  • L employed by an organization may also represents the organization’s officers, directors, employees, shareholders, or other constituents if the requirements for the exceptions in representing those with conflicts of interests are met.
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7
Q

Organization client: reporting misconduct

A

If the lawyer knows of a member’s planned or actual conduct that is a violation of a legal obligation or a violation of the law and that will cause substantial injury to the entity, he must report it to the highest authority within the entity if that would be in the best interests of the organization

If the highest authority fails to take action and L reasonably believes the violation will result in substantial injury to the organization:

  • MR: L may report out and reveal information, even if confidential, if such disclosure is necessary to prevent the injury.
  • CA: L may not report out and disclose information outside the org if it will violate the duty of confidentiality. Instead, L should urge reconsideration, resign from representation, or withdraw from representation.

CA death/substantial bodily harm exception: L may report out if necessary to prevent a criminal act likely to result in death or substantial bodily harm.

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8
Q

Former Government Employee

A

L who has formerly served as a government employee shall not represent a client in connection with a matter in which L participated personally and substantially as a government employee, unless the government agency gives informed written consent.

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9
Q

Imputed Firm Disqualification

A

A conflict for one attorney in a firm is imputed to all other attorneys in the firm, unless:

  • the conflict is based on a personal interest and does not present a significant risk of materially limiting the representation by the other firm attorneys; or
  • the conflict is based on a former client at a prior firm and the conflicted attorney is timely screened behind an ethical wall from any participation of the matter, and the former client is provided written notice and certification of compliance with the screening process; or
  • a client can waive any imputed disqualification with informed written consent
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10
Q

Conflict between client and a 3d Party

A

A conflict of interest exists if there is significant risk that the representation of a client will be materially limited by the lawyer’s loyalty/responsibility to a 3d party.

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11
Q

Compensation from 3d Parties

A

L shall not accept compensation from 3d parties to represent the client, unless:

  1. the client gives informed consent (CA: informed written consent);
  2. there is no interference with L’s independent professional judgment or with the lawyer-client relationship; and
  3. information relating to the representation remains confidential.
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12
Q

Conflict between a client and L’s personal interests

A

A conflict of interest exists if there is significant risk that the representation will be materially limited by L’s personal interest.

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13
Q

The lawyer’s relationship with the opposing counsel

A
  • relationship between opposing counsel and L: when the lawyers are closely related by blood or marriage, they must obtain informed consent before representing clients in the same or substantially related matters.
  • CA requires written disclosures when:
    a. one lawyer is the client of the other lawyer;
    b. two lawyers cohabitate;
    c. two lawyers have a personal intimate relationship.
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14
Q

L’s personal belief

A

L may still represent the client despite any conflict with his personal beliefs, with full disclosure and informed written consent.

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15
Q

Sexual relationship with clients

A

MR: L **shall not have sexual relationship with a client unless** a consensual sexual relationship existed before the lawyer-client relationship commenced.
CA follows MR, and clarifies that the above rule does not apply to sexual relations with the lawyer’s spouse or registered domestic partner.

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16
Q

Business transactions with clients

A

L shall not enter into a business transaction with a client or knowingly acquire an interest adverse to the client unless:

  1. the terms are fair and reasonable to the client; and
  2. the terms are fully disclosed in writing to the client in an understandable manner (CA requires that the lawyer’s role in the transaction be fully disclosed in writing); and
  3. the client is advised in writing to seek independent counsel (CA: client is actually represented by an independent lawyer of the client’s choice); and
  4. the client gives informed written consent to the essential terms including whether the lawyer is representing the client in the transaction.
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17
Q

Solicitation of gifts from the client

A

MR: A lawyer shall not solicit any substantial gift from a client or prepare an instrument that gives L, or a person related to L, a gift unless L/person is related to the client.

CA additional exception: L may accept a gift if the client has been advised by an independent lawyer who has provided a certificate of independent review, or if the gift is fair and there is no undue influence.

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18
Q

Proprietary interest

A

L shall not acquire a proprietary interest in the cause of action or subject matter of litigation unless to:

  • acquire a lien to secure the lawyer’s fee; or
  • contract with a client for a reasonable contingency fee in a civil case.
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19
Q

Financial assistance to client

A

ABA only: L shall not provide financial assistance to a client in connection with litigation, with the exception of:

  • contingency cases: L may advance court costs and expenses of litigation in contingency case, the repayment of which is dependent on the case outcome; or
  • indigent client: L can advance court costs and expenses of litigation on behalf of indigent clients

CA: L may lend money to the client after employment, for any purpose, if the client promises in writing to repay the loan.

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20
Q

Limiting Malpractice Liability

A

ABA only: L may not argree to limit L’s own liability to the client without advisiing the client unless client is represented by independent counsel.

CA: L CANNOT prospectively limit liability to a client.

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21
Q

Duty to communicate

A

The lawyer shall:

  1. promptly inform the client of any decision that affects the client’s informed consent;
  2. reasonably consult with the client and keep him informed of the status of the case, including any settlement and plea offers; and
  3. promptly respond to client communications and reasonable requests for information.

CA exception allows L to delay transmission of information to a client if L reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.

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22
Q

Scope of Representation

A

L must abide by a client’s substantive decisions (e.g. settle, plea, or waive jury trial, expenses, testify, appeal) after the lawyer has consulted wit hthe client.
L is responsible for employing the appropriate legal strategy (e.g. motions, discovery, witness or evidence use, etc.)

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23
Q

MR Duty of Confidentiality

A

L shall not reveal information relating to the representation of a client, except the lawyer may in the following circumstances:

  1. the client gave informed consent;
  2. the disclosure is impliedly authorized to represent the client;
  3. L reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily injury;
  4. to prevent the client from committing a crime or fraud or to mitigate or rectify a crime or fraud committed by the client that has resulted or is reasonably certain to result in substantial injury to the financial interest or property of another and the client is or has used the lawyer’s services to do so;
  5. to comply with a court order, ethics rule, or statute;
  6. to secure legal advice about the lawyer’s compliance with ethics rules; or
  7. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.
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24
Q

CA Duty of Confidentiality

A

L shall not reveal information relating to the representation of a client without the informed consent of the client, except L may:

  1. when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm, however, L must:
  • first make a good faith effort to persuade the client not to commit the criminal act; and
  • inform the client of L’s ability to reveal the information; and
  • only reveal as much information as necessary to prevent the crime.

b. when compelled by law or court order

c. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client.

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25
Q

Attorney-client privilege

A
  • An evidentiary privilege that allows a client to keep confidential all communications with his attorney, intended to be confidential, made for the purpose of facilitating legal services. The client can refuse to testify and prevent his L from testifying.
  • only applies to communications, not physical evidence.
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26
Q

Duty of competence

A

Competent representation means using the necessary diligence, learning, skill and ability (mental, emotional and physical);

  • If the lawyer is not competent, he must decline representation, associate with competent counsel, or become competent without delay.

CA: a lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. (a lower standard than the ABA rule).

  • L is allowed to consult with another competent lawyer, acquire the necessary skills to become competent, or refer the matter to another competent lawyer.
27
Q

Duty of diligence

A

(MR) a lawyer must act with reasonable diligence and promptness.

(CA) reasonable diligence means that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.

28
Q

MR vs. CA Duty of Confidentiality

A

CA rule is much stricter and provides fewer grounds permitting revealing confidential information.

29
Q

What is confidential communications?

A

the communication must be intended to be confidential

the presence of a** 3d party** may waive the privilege, unless where necessary:

  • professional services: the communication must be made for the purpose of facilitating legal services, though a fee need not be paid.
  • CA only: allows holders to stop eavesdroppers and other wrongful inceptors from revealing confidential information.
30
Q

Holder of AC Privilege

A

only the client holds the privilege and the lawyer may assert it on the client’s behalf.

31
Q

Organization AC Privilege

A
  • FRE: applies to employees/agents if authorized by the corporation to make the communication to the lawyer.
  • CA: applies to employees/agents if the natural person to speak to the lawyer on behalf of the organization may be held liable and the organization instructed him to tell its lawyer what happened.
32
Q

AC Privilege lasts until

A
  • FRE: after death, with the exception of a will contest.
  • CA: ends when the dead client’s estate has been fully distributed and his personal representative has been discharged.
33
Q

AC Privilege does not apply when

A
  • lawyer’s services were used to further crime of fraud; or
  • relates to a dispute between the lawyer and the client; or
  • two or more parties consult on a matter of common interest and the communication is offered by one against another; or
  • CEC only: L reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm.
34
Q

Duty to avoid fee misunderstanding

A

MR: all fees must be reasonable considering the following factors:
1. time limitations imposed by the client;
2. experience, reputation, and ability of the lawyer;
3. nature and length of the relationship;
4. time and labor, novelty and difficulty, and skill required;
5. fee customarily charged in the locality for similar services;
6. likelihood that the acceptance will preclude other employment;
7. amount involved and result obtained; and
8. whether the fee is fixed or contingent.

CA: fees may not be illegal or unconscionable based on the same factors as MR and these additional CA factors:
1. whether L engaged in fraud or overreading in setting the fee;
2. whether L failed to disclose material facts;
3. sophistication of both L and C;
4. the amount of fee in proportion of the value of the services performed;
5. whether the client gave informed consent to the fee.

35
Q

What must be included in the fee agreement?

A
  1. how the fee is calculated;
  2. the general nature of the legal services; and
  3. the responsibilities of the lawyer and the client.
36
Q

Writing requirement to the fee agreement

A

MR: no writing requirement
CA: requires all fee agreements over $1,000 to be in writing unless:

  1. the client is a corporation
  2. the agreement was made during an emergency
  3. the client waives the writing requirements in writing; or
  4. the services are for a previous client with similar services in which the fee can be implied.

CA requires L to submit arbitration for fee disputes; ABA does not.

37
Q

Contingency fee agreement

A
  • fee depends on the outcome of the matter.
  • may not enter into a contingency in domestic relations or criminal cases.

the contingency fee agreement must be:

  1. in writing
  2. signed by the client (CA requires signatures by both L and C with each having a copy)
  3. state the method by which the fee is to be determined;
  4. state the litigation and other expenses to be deducted from the recovery;
  5. state whether such expenses will be deducted before or after the contingency fee is calculated.
  6. CA only: state that the fee is negotiable, unless the claim is for negligence against a healthcare provider.
38
Q

fee splitting

A

MR: division of fees between Ls who are not in the same firm may be made only if:

  1. the division is proportionate to the services performed by each L or each L assumes joint responsibility for the representation,
  2. C agrees to the division and consents in writing; and
  3. the total fee is reasonable.

CA: Ls must enter into a written agreement to divide the fee and the client consents in writing after full written disclosure about the fee splitting, the total fee may not be increased simply because of the division of the fee.

39
Q

Is fee sharing with non-lawyers allowed?

A

NO

40
Q

“finder’s fee” or gifts

A

MR does not allow finder’s fees or gifts: a lawyer shall not give anything of value to a person for recommending the lawyer’s services unless it is a qualified referral service that has been approved by an appropriate regulatory agency;

CA allows a lawyer to make a gift of gratuity for a past recommendation resulting in employment if the gift was not offered or given as consideration of a promise, agreement, or understanding that the referral would be forthcoming or continue in the future.

41
Q

Duty to safekeep client’s property

A

L shall hold property of client or third persons connect with a representation separate from L’s own property
- L has a duty to keep C’s money separate and not commingle funds
-

42
Q

client trust account

A

funds must be kept in a client trust account and lawyer must keep accounting records for five years.

43
Q

advanced payment

A

MR: L shall deposit any advanced payment into a client trust account, to be withdrawn only as fees are earned or expenses incurred.

44
Q

fee dispute with client

A

L must send any money not in dispute and leave disputed portion in trust account pending dispute resolution.

45
Q

safekeeping client’s physical property

A

L shall hold a client’s or 3d party’s physical property that is connected with L’s representation separate from L’s own property, L must:

  1. identify and label the property;
  2. put the property in a safe place and safeguard;
  3. maintain a journal of the property;
  4. not commingle the property with L’s own property.
46
Q

Duty to Withdrawal/Reject representation (mandatory withdrawal)

A

A lawyer must withdraw from representation when:

  1. the representation will result in a violation of the rules of professional conduct or other law (CA: only violation of the rules of professional conduct requires withdrawal)
  2. L’s mental and physical condition materially impairs L’s ability to represent the client; or
  3. L is discharged; or
  4. CA only L knows or should know that the client is bringing an action without probable cause or to harass or maliciously injure a person.
47
Q

Permissive Withdrawal

A

L may withdraw from representation when:

MR and CA

  1. C insists on action involving the lawyer’s services that is fraudulent or criminal; or
  2. C has used the lawyer’s services to perpetrate a crime or fraud; or
  3. the representation has been rendered unreasonably difficult by the client; or
  4. the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or
  5. other good cause exists;

MR only

  1. C insists upon taking action that L considers repugnant or with which L has a fundamental disagreement, or
  2. L can do so without material adverse effect on the interests of C; or
  3. the representation will result in an unreasonable financial burden on L.

CA only

  1. C insists on presenting claims or defenses that cannot be supported by good faith, or
  2. C knowingly and freely assents to the termination; or
  3. L’s mental or physical condition make it difficult to continue; or
  4. a countinuation is likely to result in violation of the CA Rule of Professional Responsibility; or
  5. L is unable to work with co-counsel
48
Q

Duty to client upon withdrawal

A

When the court grants permission for withdrawal, L shall protect the client’s interests, and:

  1. provide C with reasonable notice to allow time to seek other counsel;
  2. surrender papers and property (L may retain a copy); and
  3. refund any advanced fee not yet earned.
49
Q

advertising

A

advertising must not be false or misleading.

L may advertise services through written, recorded, or electronic communication, including public media, unless the prospective client has made it known to L of his desire to not be solicited.

All advertisements must

  1. be truthful
  2. contain the name and office address of at least one lawyer responsible for its content;
  3. be labeled as advertising material.
50
Q

Is direct solicitation allowed?

A

L may not conduct in-person, live-telephone, or real-time electronic contact for pecuniary gain, except for:

  1. free legal services;
  2. family members;
  3. clients and former clients; or
  4. truthful, nondeceptive letters, labeled as advertising material, to people known to have a specific legal problem.
51
Q

Unauthorized practice of law

A
  • L must not practice law in a jurisdiction in which she is not admitted to the bar, unless in association with a local lawyer or to appear pro hac vice.
  • L must not assist a person in the unauthorized practice of law.
  • L who engages or assists in UPL is subject to discipline and civil and criminal penalties, the non-lawyer is subject to civil and criminal penalties.
52
Q

trial publicity

A

L who is participating in an investigation or litigation shall not make an extrajudicial statement that L knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding.

L may state the claim, offense, or defense involved.

L may not publicly state the following:

  • character, credibility, reputation, or crim record of a party;
  • possibility of a guilty plea or contents of a confession;
  • opinion as to guilt or innocence;
  • information that L reasonably knows is likely to be inadmissible.
53
Q

Duty to supervise subordinates

A
  1. A lawyer with managerial duties must make reasonable effort to ensure the firm’s lawyers and nonlawyers (e.g., paralegals) comply with the rules of professional conduct by instituting
    reasonable policies and procedures.
  2. A lawyer with direct supervisory authority over another lawyer or nonlawyer must make reasonable efforts to ensure compliance with the applicable ethical rules.
  3. If a partner or the like with direct supervisory authority over a lawyer or nonlawyer knows of misconduct when its consequences can be avoided or mitigated, the partner must take reasonable remedial action.
  4. A subordinate lawyer is bound by the rules of professional conduct notwithstanding a directive from a supervising attorney, however the lawyer will not be subject to discipline for obeying a reasonable resolution of an arguable question of professional duty.
54
Q

Duty to report ethical violations

A

MR: A lawyer who knows that another lawyer has committed a violation of the MR that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate authority.

CA: permits, but does not require, the reporting of ethical violations.

55
Q

Association with non-lawyer

A

No practice with a non-lawyer:

L shall not practice with or form a partnership or association authorized to practice law with a non-lawyer.

  • L shall not share legal fees with a non-lawyer
  • A non-lawyer shall not direct or control L’s professional judgment.
56
Q

CA Duty to Self-Report

A

CA requires self-reporting when:

  • sued for malpractice 3 times in 12 months;
  • found civilly liable for fraud;
  • sanctioned more than $1,000;
  • charged with a felony;
  • convicted of a serious crime;
  • disciplined in another jurisdiction.
57
Q

Duty of Fairness

A
  1. A lawyer may not suppress evidence she is legally obligated to produce.
  2. A lawyer may not pay a witness to induce specific testimony but can pay reasonable expenses; a lawyer may not encourage a witness to testify falsely.
  3. A lawyer cannot violate discovery rules nor allude to inadmissible facts in court.
  4. A lawyer who receives a communication relating to a client and reasonably knows it was inadvertently sent (intended for another) must promptly notify the sender of the mistake.
58
Q

Duty not to contact represented party

A
  1. A lawyer may not communicate about the subject matter of the representation with a person he knows to be represented by counsel, unless he has the other lawyer’s consent.
  2. When the client is an organization, a lawyer may not communicate with a current member (e.g., employee) if that person:
  • Has legal authority to bind the organization; or
  • Is one whose conduct may be imputed to the organization.
  1. Represented parties may directly communicate with one another.
59
Q

Duty of Candor

A
  1. Statements of fact—a lawyer must not offer false statements, and must correct statements made by the lawyer or by others; a lawyer is not under a duty to reveal facts unfavorable to the client unless in an ex parte proceeding or to prevent assisting the client commit a crime/fraud.
  2. Statements of law—a lawyer must not offer false statements, and must correct false statements of law previously made by the lawyer.
  3. Controlling legal authority—a lawyer must disclose adverse controlling legal authority;
    CA: L must not knowingly misquote a book, statute, decision, or other authority
60
Q

Duty of Honesty (to avoid perjury)

A

Falsifying evidence—

  • a lawyer may not introduce evidence she knows to be false nor assist a witness in testifying falsely;
  • in a civil case (not with a criminal defendant), a lawyer has the discretion to refuse to introduce evidence she reasonably believes to be false.
  • Before a client testifies the lawyer must take remedial measures and counsel the client not to testify falsely, and if that fails withdraw if possible;
  • If withdrawal is not possible or is denied:
    ♦ MR—L must notify the court even if it would reveal client confidences
    ♦ CA—L may not disclose confidential information but may use the narrative statement approach (the client testifies without lawyer input or questioning)
  • After a client testifies the lawyer must take remedial measures and counsel the client to recant and if that fails withdraw;
  • If withdrawal is not possible or is denied:
    ♦ MR—L must disclose the client perjury even if it would reveal client confidences
    ♦ CA—L may not disclose the client perjury without client consent
61
Q

Duties of a Prosecutor

A
  1. May not prosecute without probable cause
  2. Must ensure the defendant is advised of the right to counsel
  3. Must timely disclose exculpatory evidence
  4. After conviction, must timely disclose to the court and to the D any new, credible, and material evidence creating a reasonable likelihood of D’s innocence, and investigate whether D was wrongly convicted
62
Q

CA only: threat to gain advantage

A

a lawyer must not threaten to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute and will be subject to discipline for doing so.

63
Q
A

CA Essay (12 decks)

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