Professional Responsibility

Question 1

Duty of Loyalty

Answer 1

Under ABA and CA rules, a lawyer owes a duty of loyalty to act solely to further the client’s best interest. The lawyer may not sacrifice her client’s interests for her or a third-party’s. A lawyer must avoid representation that poses a conflict of interest.

Question 2

Introduction

Answer 2

Always start each rule statement, depending on which one applies, with one of the following phrases:

(1) Under ABA and CA rules,…

(2) Under ABA rules…

(3) Under CA rules…

Question 3

Duty of Loyalty - Actual Conflict

Answer 3

an actual conflict exists when the interest of the attorney, another client, or a third party materially limits or adversely affects loyal representation. An attorney must not undertake representation, unless: COPI

(1) Clients - The claim of one client is not against another client

(2) Objectively reasonable - the atty reasonably believes she can competently and diligently represent each affected client.

(3) Prohibited - Representation is not prohibited by law.

(4) Informed - each client gives informed, written consent.

Question 4

Duty of loyalty - Potential Conflict

Answer 4

A potential conflict exists when the atty suspects an actual conflict exists, but her representation is not yet materially limited or adversely affected.

Question 5

Duty of loyalty - Imputed Disqualification

Answer 5

A COI between an attorney and a client is imputed to all attys in the firm, except when:

(1) Current gov service conflicts with service to previous government

(2) The personal interest of one attorney does not affect diligent and competent representation of other attorneys, or

(3) The attorney represented an adverse party at her previous firm

Question 6

Imputed disqualification under CA rules

Answer 6

Under CA rules, an attorney with an imputed conflict is disqualified from representation. A disqualified lawyer may be screened from that representation if:

(i) Timely screened
(ii) No apportionment of fees from imputed conflict
(iii) written notice is given to all affected clients, and
(iv) periodic certifications to ensure compliance

Remedies: (a) refuse to take case, (b) advise multiple clients to get separate counsel, or (c) withdraw

Question 7

Duty of Loyalty - Conflicts between current clients

Answer 7

Under ABA and CA, an attorney may represent clients with a potential conflict, with proper consent. However, it is rarely proper if there is an actual conflcit.

Question 8

Duty of Loyalty - Conflicts between current clients (CA)

Answer 8

Under CA rules, even if the significant risk that lawyer’s representation will be materially limited is NOT present, a lawyer must still provide written disclosure of the relationship to the client and meet the actual conflict exceptions (see above) if (i) the L has or knows that another lawyer in the Ls firm has any kind of relationship to a party or witness; or (ii) the L knows or reasonably should know that another party’s lawyer is related to a lawyer, lives with a lawyer, is a client of a lawyer or one in his firm, or is in an intimate relationship with lawyer.

Question 9

Conflicts between current clients - opposing sides of a different matter

Answer 9

A representation adverse to a current client in another matter requires all clients to consent.

Under CA rules, a an attorney is absolutely prohibited from taking a case adverse to a client she is currently representing, regardless of the relationship of cases.

Question 10

Conflicts between current clients - Two clients with inconsistent positions

Answer 10

An attorney can represent opposing positions on different appeals, but if either would be disadvantaged, the atty must withdraw from representation.

Question 11

Multiple clients in the same matter

Answer 11

An atty can represent multiple clients in the same matter if there is informed consent. However, if an actual conflict arises, the atty must withdraw from representing both parties and advise both to seek separate counsel.

Question 12

Conflicts dealing with former clients

Answer 12

Under ABA and CA rules, a L cannot represent a client whose interests are materially adverse to a former client, unless the FC gives informed, written consent. There may be imputed disqualification, depending on the work.

Question 13

Conflicts dealing with former clients - Limited Partnerships (test)

Answer 13

do the representations overlap in function, scope, or information?

Question 14

Conflicts dealing with former clients - leaving firm (test)

Answer 14

if a L leaves a firm, can the firm now represent the client? Imputed disqualification applies to former firm if:

(1) the matters are substantially the same, and (2) any remaining lawyer has confidential material information

Question 15

Conflicts dealing with former clients - former government lawyers

Answer 15

Former gov lawyers cannot later represent a client in connection with a matter in which she participated personally and substantially as a gov agent. Other members of the firm can take representation if:

(1) the former gov lawyer is screened
(2) the former gov lawyer receives no part of the fee, and
(3) the gov employee is informed of the representation

*Under CA rules, prosecutors are barred from participating in the defense of the same case in private practice

Question 16

Specific situations that create conflicts

Answer 16

(1) Business transactions with clients

(2) Gifts

(3) Financial assistance to a client

(4) Third party paying client’s bill

(5) Limiting malpractice liability

(6) Aggregate settlement/guilty pleas

(7) Sexual relations with a client

(8) Lawyer as witness in a jury trial

(9) lawyer with clients in relationships

(10) proprietary interest in causes of action

(11) Literary/Media rights

Question 17

Creating Conflicts - Business Transactions with Client

Answer 17

Under ABA and CA rules, an atty may not enter into a business transaction with a client or knowingly acquire an ownership interest or other pecuniary interest adverse to the client, unless:

(1) The terms are fair and reasonable to the client

(2) Terms are fully disclosed in a reasonably understandable writing

(3) Client has an opportunity to seek the advice of outside counsel, and

(4) The client gives informed, written consent

Board of directors service - There is no automatic bar for Ls serving on the BOD but it is strongly discouraged because it likely compromises the duty of competence and duty of loyalty. Under CA rules, written disclosure is required for board service.

Question 18

Specific conflict situation - gifts

Answer 18

Under ABA rules, an atty is prohibited from soliciting substantial gifts or drafting a legal instrument for a client who is not a close relative if it provides a substantial gift to the attorney.

Under CA rules, preparation of a legal instrument that provides a gift to a L is permitted if not induced.

Question 19

Specific conflict situation - Financial assistance to client

Answer 19

Under ABA rules, a L may not provide financial assistance to a client, except:

(1) for litigation expenses from an indigent client, or (2) advancing litigation expenses in contingency cases

Under CA rules, an atty is also prohibited from promising to pay a prospective client’s debts, but permits a loan to a client in all matters for any purpose and requires a written loan agreement.

Question 20

Specific conflict situation - 3rd Party Paying Client’s Bills

Answer 20

(1) The client must give informed, written consent

(2) There must be no interference with the L’s relationship with the client, and

(3) The info relating to the client’s representation is protected

Question 21

Specific conflict situation - Limiting malpractice liability

Answer 21

Under ABA rules, an atty is prohibited from making an agreement that limits the L’s malpractice liability, unless the client is independently represented in making the agreement. If a client later does make a malpractice claim, settlement is permitted if written advice is given to the client to consult outside counsel.

Under CA rules, a L cannot limit malpractice liability.

Question 22

Specific conflict situation - aggregate settlement / guilty pleas

Answer 22

Aggregate settlement agreements/guilty pleas are not allowed, unless each client gives informed written consent

Question 23

Specific conflict situation - sexual relations with client

Answer 23

Under ABA rules, a L is prohibited from engaging in consensual sexual relations with a client, unless is preexisted the a-c relationship

Under CA rules, a L shall not engage in sexual relations with a current client who is not the Ls spouse or registered DP, unless it pre-existed the a-c relationship

Question 24

Specific conflict situation - L as witness in a jury trial

Answer 24

Under ABA rules, a L is barred from appearance as counsel and as a witness in the same trial, unless:

(1) The Ls testimony is solely for an uncontested matter

(2) The Ls testimony only concerns the nature and value of legal service, and

(3) The Ls distinctive value to the case will cause substantial hardship to the client

Under CA rules, an atty can testify in a bench trial and jury trial with client’s consent

Question 25

Specific conflict situation - Lawyer with clients in relationships

Answer 25

Under ABA and CA rules, a L must obtain written consent if she is representing diff clients in the same or substantially related matter and clients are blood relatives or married Under CA rules, a L must also obtain written consent if the representation involves: (1) A L who is the client of another (2) Ls live together, or (3) Ls have an intimate personal relationship

Question 26

Specific conflict situation - Proprietary interest in causes of action

Answer 26

L shall not acquire a proprietary interest in the cause of action or the subject matter of litigation in which client is represented EXCEPT when (1) L acquires a lien granted by law to secure payment of a fee OR (2) L contracts for a reasonable contingent fee where allowed

Question 27

Specific conflict situation - Literary/media rights

Answer 27

Prior to the conclusion of the client's representation, a L must not make an agreement giving the L media rights or literary rights based on information relating to the client's representation.

Question 28

Representing an organization

Answer 28

An attorney must act in the best interest of the entity: Under ABA rules, an atty must report wrongdoing to a higher authority, and if necessary,to the highest authority. If the highest authority fails to timely take action, the atty may report relevant info to appropriate persons outside the organization (higher/highest/outside) Under CA rules, an atty allows reporting to the higher/highest authority. An atty is prohibited from reporting relevant information to outside persons, unless it would result in death or great bodily harm

Question 29

Sabanes-Oxley Act

Answer 29

When a lawyer has credible evidence that his client is materially violating securities law, he MUST report up to the corporation’s Chief Legal Officer (“CLO”) * The CLO must then investigate and make an appropriate response and report back to the lawyer * If the lawyer believes an appropriate response did not happen, he must report the evidence to the company’s board * Lawyer MAY reveal to SEC any confidential information reasonably necessary to: o Stop client from committing a violation that will cause substantial financial injury to the client or its investors; o Rectify such a financial injury if the attorney’s services were used to further the violation; OR o Prevent the client from committing perjury to SEC.

Question 30

Duty of Confidentiality

Answer 30

Under ABA and CA rules, a lawyer may not: · (1) Reveal any information obtained from the client · (2) In the course of the representation, · (3) Intended to be kept confidential · (4) Without the client's consent. · A lawyer owes a continuing duty to indefinitely preserve information gained in confidence, during the representation of a former client. o Under CA rules, a lawyer has a duty to maintain inviolate client confidences.

Question 31

Duty of Confidentiality Exceptions

Answer 31

(1) Fraud or Substantial Financial Loss (2) Lawyer's Claim or Defense (3) Legal Ethical Advice (4) Required by court, ethics rules, or law (5) Consent or implied authority (6) Death or great bodily harm

Question 32

DOC Exception - Fraud or Substantial Financial Loss

Answer 32

A lawyer may disclose information to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss, if the client is using or has used the lawyer's services to commit the crime or fraud Under CA rules, disclosure is not permitted if financial loss will result

Question 33

DOL Exception -Lawyer's claim or defense

Answer 33

Confidential information may be disclosed if reasonably necessary to establish a lawyer's claim or defense in a controversy between the lawyer and the client.

Question 34

DOL Exception - Legal Ethical Advice

Answer 34

Confidential information may be disclosed to obtain confidential legal advice about the lawyer's duty to comply with legal ethical rules.

Question 35

DOL Exception - Required by court, ethical rules, or law

Answer 35

A lawyer must comply with the final orders of a court or tribunal requiring disclosure of client information. There are also ethical rules and statutes, which require an attorney to reveal information in certain circumstances.

Question 36

DOL Exception - Consent or Implied Authority

Answer 36

A lawyer may reveal information related to the representation if the client gives informed consent, or if the disclosure is impliedly authorized in order to carry out representation.

Question 37

DOL Exception - Death or Great Bodily Harm

Answer 37

A lawyer may reveal client information to the extent she reasonably believes disclosure is necessary to prevent death or great bodily harm. o Under CA rules, the attorney must:  (1) Make a good faith effort to persuade the client not to commit the act,  (2) Inform the client of decision to reveal her confidences, then  (3) Lawyer may reveal the confidential information.

Question 38

A-C Privilege

Answer 38

Under ABA and CA rules, the attorney-client privilege protects the disclosure of any communication relating to the attorney-client relationship, legal services, but not business tactics. The client is the holder of the privilege and it includes any communications made through or in the presence of the client or lawyer's agents. · Under ABA rules, the attorney-client privilege continues indefinitely even after the relationship ends. · Under CA rules, the attorney-client privilege terminates once the client's estate is settled and the personal representative is discharged.

Question 39

A-C Privilege Corporate Clients

Answer 39

If the client is a corporation, the attorney-client privileges covers confidential communications between: · (1) The attorney and high-ranking officials in a corporate capacity, and · (2) Other corporate employees, if: (SAD) o (i) The communication is made within the scope of the employee's duties o (ii) The employee knows that communication is to assist the corporation in obtaining legal advice, and o (iii) The communication is made under the direction of employee's superior.

Question 40

A-C Privilege Exceptions

Answer 40

The attorney-client privilege does not protect communications related to: · (1) Breach of the attorney-client privilege · (2) A crime or fraud o Under CA rules, the attorney-client privilege does not protect communications related to a client's criminal act that may result in death or great bodily injury. · (3) Intent to destroy a will or transfer (i.e. a lawyer may disclose evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer) · (4) Civil litigation between two persons who were formerly joint clients of the attorney.

Question 41

Duty of Competence

Answer 41

Under ABA and CA rules, a lawyer owes a duty to communicate all settlement offers to the client and return calls and e-mails.

Question 42

Duty of Diligence

Answer 42

Under ABA and CA rules, a lawyer owes a duty to diligently, promptly, and zealously advocate for her client.

Question 43

Accepting Representation

Answer 43

Under ABA and CA rules, a lawyer may accept or reject any case. A lawyer must reject a case if: · (1) Taking the case will violate the law · (2) Taking the case will violate disciplinary rules · (3) The lawyer is physically or mentally incapable of representation, or · (4) The claim is frivolous.

Question 44

Mandatory Withdrawal

Answer 44

Under ABA and CA rules, withdrawal is mandatory if: · (1) The representation will violate the law · (2) The representation will violate disciplinary rules · (3) The lawyer is physically or mentally incapable of representation, or · (4) The lawyer is discharged.

Question 45

Permissive Withdrawal - Good Cause

Answer 45

Under ABA and CA rules, an attorney may withdraw if there is good cause, and no undue delay or disruption will result. · Good cause - Good cause is shown when: o (i) Representation would be financially burdensome o (ii) Representation will violate the law or disciplinary rules o (iii) The lawyer finds the client's position repugnant or imprudent, or o (iv) The client refuses to fulfill an obligation after being warned of withdrawal for noncompliance.

Question 46

Withdrawal Procedure

Answer 46

A lawyer must: o (i) Provide notice of withdrawal o (ii) Return all of the client's materials promptly o (iii) Protect the client's interest, and o (iv) Cannot withhold the client's materials to compel payment of outstanding fees.

Question 47

Withdrawal Corporation

Answer 47

Under ABA and CA rules, a lawyer owes a duty of loyalty to the corporation, not its officers or directors. A lawyer must protect the corporate interest and report any employee wrongdoing. However, an attorney-client relationship develops when an officer/director/member deliberately asks for confidentiality in an individual, rather than corporate, capacity, and reports wrongdoing. The attorney may not reveal the acts and must withdraw from corporate representation.

Question 48

Duty of Financial Integrity

Answer 48

General Rule: a lawyer must not charge fees that are unreasonable (CA: fees must not be unconscionable) under the circumstances, considering: 1. Time and labor required; 2. Likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; 3. Fee customarily charged in the locality; 4. Amount involved and the results obtained; 5. Time limitations imposed by the client or by the circumstances; 6. Nature and length of the professional relationship with the client; 7. Experience, reputation, and ability of the lawyer; AND 8. Whether the fee is fixed or contingent 9. CA: Failure to disclose material facts and engaging in fraud or overreaching in negotiating fees are also considered unconscionable.

Question 49

CA Writing Requirement

Answer 49

* Under the Business and Professions Code, CA requires that, where it is reasonably foreseeable that the total expense to a client (including attorney fees) will exceed $1,000, the contract for services must be in writing * Contents of writing a. Basis of compensation (e.g., hourly rates, other fees, etc.); b. General nature of legal services to be provided; and c. Contractual responsibilities of the lawyer and the client.

Question 50

Exceptions to CA writing requirement

Answer 50

* Exceptions: no writing required, IF: d. Client is a corporation; e. Client states in writing he does not want a written fee agreement; f. Arrangement as to fee is implied by the fact that lawyer’s services are of the same general kind as previously rendered to and paid for by client; g. Services were rendered in an emergency situation; OR h. A writing is impractical for other reasons.

Question 51

Contingent Fees Requirements - ABA

Answer 51

· Under ABA rules, a contingent fee arrangement requires: o (1) A written agreement o (2) Signed by the client o (3) Attorney's fee percentage o (4) Expenses to be deducted from recovery o (5) Whether the percentage is taken before or after expenses. o The contingent fee arrangement is prohibited in criminal or domestic cases.

Question 52

Contingent Fees - CA Requirements

Answer 52

a contingent fee arrangement includes the five ABA rules above, and: o (6) How work not covered by the contingency fee will be paid for, and o (7) That attorney's fees are negotiable.

Question 53

Under ABA and CA Rules, contingent fees are not allowed for:

Answer 53

o Criminal Cases o Domestic Relations Cases, when fee is contingent on:  Obtaining a Divorce;  Amount of Alimony or Support; OR  Property Settlement

Question 54

Arbitration

Answer 54

· Under ABA rules, arbitration is encouraged for disputes arising between an attorney and client about a fee arrangement. · Under CA rules, if a client desires, arbitration is required for disputes arising between an attorney and client about a fee arrangement.

Question 55

Fee Splitting - ABA Rules

Answer 55

* Under ABA rules, lawyers from different firms who work on a case together can submit one bill to the client and then divide fee IF: o Division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for representation; o The client gives informed written consent; AND o The total fee is reasonable

Question 56

Fee Splitting - CA

Answer 56

fee splitting with lawyers from different firms is prohibited, UNLESS: o Client gives informed written consent (which includes disclosure of the identity of the lawyers/law firms to the division, and the terms of the division) at the time of the agreement to divide fees or as soon thereafter as reasonably practicable after full written disclosure to the client of the fact that a fee division will be made o Total fee charged is not increased because of split o Fee is not unconscionable

Question 57

Referral fees with another attorney

Answer 57

· Under ABA rules, referral fees are prohibited except in rare circumstances. · Under CA rules, referral fees are not prohibited so long as the total fee is not unconscionable, and the fee is not increased due to the referral. Client must be informed

Question 58

Fee-splitting with non-lawyers

Answer 58

, fee splitting with non-lawyers is generally not permitted, except for: · (1) Death benefits to deceased attorney's estate for her work · (2) Fees passed on as salaries to non-lawyer employees, and · (3) Sharing of court-awarded legal fees with a non-profit organization that employed/recommended the lawyer. · A lawyer may pay for the usual charges of a qualified referral service.

Question 59

Partnership with non-lawyers

Answer 59

Under ABA and CA rules, partnerships between lawyers and non-lawyers to provide legal services are absolutely prohibited. However, reciprocal referrals with other professionals are permitted if they are not exclusive and the arrangement is explained to the client.

Question 60

Non-profit (CA)

Answer 60

Where the legal fee is not court awarded, but arises from settlement or other resolution of the claim or matter, the lawyer may share or pay the legal fee to the nonprofit organization, provided that the nonprofit organization qualifies under section 501(c)(3) of the Internal Revenue Code and the lawyer complies with requirements to protect the client.

Question 61

Protecting client's property - duty to not commingle

Answer 61

Under ABA and CA, Lawyer has a duty to not commingle client funds with personal funds and must place client funds in a client trust account * Exception: attorney can put personal funds into client account for the sole purpose of paying bank service charges, but only the amount that is necessary for that purpose.

Question 62

Duty to safeguard client property

Answer 62

Under ABA and CA, a lawyer has duty to safeguard a client's property by labeling and storing in a safe place * CA: advance fee deposits (commonly mislabeled as a “retainer”) must be deposited into a client trust account maintained in ca (this rule uses the word “funds received or held,” which means it applies to all such fees—even those received prior to effective date of the rule).

Question 63

Duty to keep good records

Answer 63

Under ABA and CA, Lawyer has duty to keep good records for the client, render accounts, and to notify the client on money received on his behalf (i.e., to keep the client informed), and promptly pay all money owed to the client. * Duration: lawyer must keep records of funds for at least 5 years after termination of the representation (ca: must keep records of funds for 5 years after final distribution of the funds/property)

Question 64

Fees in Dispute

Answer 64

Under ABA and CA, if a lawyer is in possession of funds or other property to which lawyer or a third-person has a claim, and client disputes the claim, lawyer must keep the disputed portion of the funds or property separate

Question 65

Duty of Communication

Answer 65

* Under ABA and CA rules, lawyer owes a duty of communication to their client whereby they relate information regarding the case’s progression and status on a periodic basis so the client can make informed decisions regarding his case. * Must return phone calls * Must allow client to make decisions at all critical stages, including: o Acceptance or rejection of settlement offers o Whether to appeal o What expenses to incur o Plea to be entered in a criminal case o Waiver of jury trial in a criminal case o Whether to testify in a criminal case o CA: in Criminal trials, lawyer must convey the details of any offer to client

Question 66

Scope of representation

Answer 66

Under ABA and CA rules, clients make decisions on substantive rights. Attorneys make decisions on procedural/legal strategy

Question 67

Duties to the court - duty of candor and truthfulness

Answer 67

Under ABA and CA rules, an attorney is prohibited from conduct involving dishonesty, fraud, deceit, or misrepresentation

Question 68

Duties to the court - duty to state law truthfully

Answer 68

Under ABA and CA rules, an attorney is prohibited from making a false statement of law to the court. An attorney has an obligation to be candid about the law and has a duty to cite adverse authority if it is from a controlling jurisdiction and directly on point. Presenting frivolous claims or defenses is unethical and subject to disciplinary action.

Question 69

Duties to the court - duty to uphold the law

Answer 69

Under ABA and CA rules, if representation requires the attorney to assist in committing a crime or fraud, the attorney must withdraw. If the client persists but attorney does not assist, the attorney may withdraw. · Under ABA rules, if an attorney knows a client is likely to cause financial loss, death or great bodily harm to another, the attorney may disclose. · Under CA rules, if an attorney knows a client is likely to cause death or great bodily harm to another, the attorney may disclose.

Question 70

Duty to produce evidence

Answer 70

Under ABA and CA rules, an attorney cannot intentionally or knowingly destroy, conceal, or alter evidence, obstruct from access or counsel anyone else to do so. An attorney has a duty not to suppress any evidence the client or attorney has a legal obligation to reveal.

Question 71

Duty to Produce Evidence - Contraband

Answer 71

The attorney must deliver client's property that is reasonably certain contraband.

Question 72

Duty to Produce Evidence - Interference with Evidence

Answer 72

An attorney and her agents may look at evidence, but not touch it. If evidence is retrieved, the attorney must turn it over to authorities and may be compelled to testify about the location or condition but not the source.

Question 73

Duty to Produce Evidence - Ex parte proceedings

Answer 73

Ethical duties of candor and fairness to an absent adversary require relevant information to be revealed even if harmful to client's case.

Question 74

Duty to Produce Evidence - Special Duties of Prosecutor

Answer 74

Prosecutors must: o (1) Refrain from prosecuting a charge not supported by probable cause o (2) Make reasonable efforts to make sure accused has been advised of her right to counsel, o (3) Give a reasonable opportunity to obtain counsel, and o (4) Make timely disclosures to defense of all exculpatory evidence.

Question 75

Duty to Present Facts and Evidence Truthfully

Answer 75

Under ABA and CA rules, an attorney must not: · (1) Falsify evidence · (2) Make false statements of material facts · (3) Offer evidence known to be false to the tribunal, or · (4) Fail to correct false statements of material fact that the attorney previously made.

Question 76

Duty not to facilitate client perjury - civil case

Answer 76

Under ABA and CA rules, an attorney must not knowingly facilitate client perjury. · Civil case - An attorney must refuse to call the client as a witness if she knows the client intends to perjure himself.

Question 77

Duty not to facilitate client perjury - criminal case

Answer 77

Criminal Ds have a Fifth Amendment right to testify on their own behalf and a Sixth Amendment right to effective assistance of counsel. An attorney has an obligation to protect client confidences. If a client intends to perjure himself, the attorney must: o (1) Advise the client to testify truthfully or not take the stand o (2) Try to withdraw from the case, or o (3) Under ABA rules, an attorney must disclose the perjury to the judge.  Under CA rules, an attorney must allow the D to testify in a narrative fashion but cannot further the deception.

Question 78

Duty not to facilitate client perjury - after proceedings

Answer 78

If the attorney discovers the perjury after the proceedings, the attorney is required to take steps 1-3 above, but her duties end after the time for appeal has run. (1) Advise the client to testify truthfully or not take the stand o (2) Try to withdraw from the case, or o (3) Under ABA rules, an attorney must disclose the perjury to the judge.

Question 79

Duty of fairness to opposing party and counsel - access to evidence

Answer 79

o Under ABA and CA rules, lawyer must not obstruct another person’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. Lawyer must not counsel or assist another person to do such acts. o Under ABA and CA, a lawyer must not make frivolous discovery requests or fail to make a reasonably diligent effort to comply with a legally proper discovery request of opposing party

Question 80

Duty of fairness to opposing party and counsel - trial tactics

Answer 80

o Under ABA and CA, lawyer must not allude to any matter that is irrelevant or that is not supported by admissible evidence. A lawyer must not assert personal knowledge about the justness of a cause or of facts, except when testifying as a witness o Under ABA and CA, a lawyer must not counsel a third-party to refrain from voluntarily giving relevant information to another party, unless:  Third-party is a relative or employee of the client; and  Lawyer reasonably believes that the person’s interests will not be adversely affected * Under CA rules, a lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. o “Civil dispute” is defined as a pending lawsuit in a state or federal court; an action pending before an administrative tribunal; and any controversy or potential controversy, whether or not a formal proceeding has been initiated.

Question 81

Special duties of prosecutors - probable cause

Answer 81

Under ABA and CA rules, a prosecutor has a duty to only proceed where there is probable cause

Question 82

Special duties of prosecutors - exculpatory evidence

Answer 82

Under ABA rules, a prosecutor must make timely disclosure of all potentially exculpatory evidence o Under CA rules, a prosecutor must, make timely disclosure to defense of ALL evidence or information known to the prosecutor that the prosecutor knows or reasonably should know, which will tend to negate the guilt of the accused, mitigate the offense, OR mitigate the sentence

Question 83

Special duties of prosecutor - right to counsel

Answer 83

Under ABA and CA rules, a prosecutor must make sure accused was advised right to counsel & given reasonable opportunity to obtain a lawyer

Question 84

Special duties of prosecutor - waiver/rights

Answer 84

Under ABA and CA rules, a prosecutor must not seek a waiver of rights from an unrepresented person, unless person refuses to get a lawyer, then can seek waiver.

Question 85

Special duties of prosecutor - subpoena lawyer

Answer 85

Under ABA and CA rules, a prosecutor must not subpoena another lawyer before a grand jury or other criminal proceeding, unless: o The prosecutor believes that information sought not protected from disclosure; o Evidence is essential to the successful completion of the proceeding; AND o There is no alternative source for the information

Question 86

Special duties of prosecutor - public statements

Answer 86

Under ABA and CA rules, a prosecutor must not make public statements with substantial likelihood of heightening public condemnation of accused

Question 87

Special duties of prosecutor - innocent evidence

Answer 87

Under ABA and CA rules, if a prosecutor knows of new credible evidence creating a reasonable likelihood that D did not commit the crime for which he was convicted, prosecutor shall undertake further investigation and shall disclose the information to D and the court

Question 88

Communication with adversaries

Answer 88

o Under ABA and CA rules, a lawyer must not talk to person that lawyer knows is represented by counsel, unless the other lawyer consents or there is a court order o Under ABA and CA rules, a lawyer must not give legal advice or represent that he is disinterested to person not represented by counsel o Under ABA and CA rules, a lawyer can communicate with unrepresented person, but no legal advice

Question 89

Communication with Witnesses: Under ABA and CA rules, a lawyer may:

Answer 89

o Under ABA and CA rules, a lawyer may:  Contact all witnesses, even witnesses for an opposing party * If opposing witness is represented by a lawyer, the lawyer may only communicate with the other lawyer  Pay expert witness a reasonable fee in addition to being reimbursed for expenses, but expert fees cannot be contingent on outcome * Cannot pay a non-expert witness (including sending gifts after witness has testified) o Except: can reimburse expenses incident to testifying (e.g., travel/lodging costs, lost wages, etc.)

Question 90

Communication with witnesses: Under ABA and CA, a lawyer cannot:

Answer 90

 Not tell non-client to hush: lawyer must not counsel third-party to refrain from voluntarily giving relevant information to another party, unless: * Third-party is a relative or employee of the client; and * Lawyer reasonably believes that the person’s interests will not be adversely affected  Harass or encourage a witness to leave jx to avoid testifying  Pay witness on a Contingency Basis

Question 91

Communication with Jurors

Answer 91

o Before trial (before jury selection): Under ABA and CA rules, a lawyer must have no communications with members from which jury will be selected o During trial: Under ABA and CA rules, a lawyer must have no communications, except during the official court proceedings o After trial: Under ABA and CA rules, a lawyer can communicate (e.g., ask how the juror perceived the case), unless:  Prohibited by the law;  If the juror indicates a desire to not be communicated with; or  If the attorney engages in misrepresentation or harassment.

Question 92

Communications with the Court

Answer 92

o No ex parte: Under ABA and CA rules, ex parte communications are not allowed, except in an emergency (if emergency: lawyer must inform other side asap about ex parte communication, what went on, and content of such communication) o Gifts: Under ABA and CA rules, no gifts to court personnel are allowed.  Exception: ordinary social hospitality (e.g., best friend from law school becomes judge—give birthday gifts if you’ve always done it)

Question 93

Communications about judges and adjudicatory officers

Answer 93

o Under ABA and CA rules, a lawyer cannot make false statements about judges and adjudicatory officers, if: o Lawyer knows the statements are false; or o Lawyer is acting with reckless disregard to the truth

Question 94

Communications with the press

Answer 94

o Under ABA and CA rules, a lawyer may not make a statement that is reasonably likely to be publicly disseminated, if there is a substantial likelihood of materially prejudicing an adjudicatory proceeding o Under ABA and CA rules, a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the attorney or the lawyer’s client.

Question 95

Unauthorized practice of law

Answer 95

Under ABA and CA rules, an attorney must not engage in or assist others in the unauthorized or unlicensed practice of law, except by pro hac vice order. · Under ABA rules, a multi-state jurisdictional practice allows temporary practice in another state if the attorney associates with an in-state attorney. · Under CA rules, out-of-state attorneys may practice in state if: o (1) The attorney practices under the supervision of a CA attorney for no more than three years o (2) The attorney practices as in-house counsel but does not engage in individual representation or court appearances, or o (3) The attorney is practicing temporarily in CA, arising out of practice in home state.

Question 96

Reporting Misconduct

Answer 96

· Under ABA rules, an attorney is required to report another attorney's misconduct if there is a substantial question of that attorney's honesty, trustworthiness, or fitness as an attorney. · Under CA rules, an attorney may be disciplined for knowing about a fellow firm member's disciplinary violation and doing nothing to prevent it (e.g. counseling the lawyer, or telling a supervisor). CA also requires self-reporting if charged with a felony or certain crimes, found civilly liable for fraud or breach of fiduciary duty, disciplined in another jurisdiction, or under certain conditions, sued for malpractice or sanctioned. Starting Aug. 1 2023, CA SCOTUS has approved a new rule of professional conduct that requires CA attorneys to report any lawyer who commits a criminal act, engages in fraud, misappropriates funds or property, or engages in conduct involving dishonesty, deceit, and reckless or intentional misrepresentations

Question 97

Duties of Subordinate Attys - Clear Violations

Answer 97

Under ABA and CA rules, a subordinate attorney is independently responsible for clear violations of ethical responsibilities regardless of the instructions of the supervising attorney.

Question 98

Duties of Subordinate Attys - Debatable Violations

Answer 98

Under ABA and CA rules, a supervising attorney is solely responsible for debatable violations of ethical responsibilities.

Question 99

Duties of Subordinate Attys - Supervising Attys Ethical Responsibility

Answer 99

Under ABA and CA rules, a supervising attorney is liable if she ratifies an action or knew of ethical misconduct and failed to take action.

Question 100

Duty to Preserve Impartiality and Decorum of Tribunal

Answer 100

Under ABA and CA rules, an attorney must not try to improperly influence by trickery, disruptive conduct, or theatrics. Before and during trial, an attorney must not talk to any prospective or empaneled juror. After trial, the attorney may interview jurors with valid consent.

Question 101

Duty to Expedite Cases

Answer 101

· Under ABA rules, an attorney has an affirmative duty to expedite cases. An attorney has a duty to follow procedural rules, unless she is making a good faith challenge to their validity. · Under CA rules, an attorney is prohibited from delaying cases for personal gain/convenience/to harass.

Question 102

Duty to avoid false or misleading ads

Answer 102

A lawyer’s advertising is recognized as “commercial speech,” which is protected by the 1st and 14th Amendments. States may not flatly prohibit a lawyer from advertising, unless the ads are false or misleading. * Under ABA and CA rules, a lawyer must not make false or misleading statements. o Misleading: Contains material misrepresentation of law or fact OR omits a fact necessary to make statement as a whole not materially misleading

Question 103

DUty to avoid false ads - Under CA rules

Answer 103

any ad that contains items on this list are false or misleading. The following are NOT OK:  Communications to potential client is still in the hospital;  Communications to potential client suffering from physical or mental stress;  Communications that have testimonials or endorsements without a disclaimer that says that they are not a promise about the results of a potential client’s case; AND  Letters seeking fee-paying work that is not clearly labeled as ads

Question 104

Ad Requirements

Answer 104

o Must include name and office address of at least 1 lawyer or firm responsible for its content o Lawyer may communicate that he practices or does not in specific fields o Must be conspicuous as advertising by stating “Advertising Material” o May communicate that he is a certified specialist, ONLY IF certified by accrediting body AND that body is identified in ad or communication o Under CA rules, the following are prohibited:  Guarantees or warranty of case outcome;  Anything that suggest quick cash or a quick settlement;  Impersonation of an attorney or client w/o disclosing it as such;  Dramatizations of an accident or event w/o disclosing it as such;  If it is for a contingent fee arrangement where clients must pay court costs if they lose, it MUST say so in the ad; AND  ANYTHING else (including omissions) making ad false/misleading

Question 105

Duty to not improperly solicit clients

Answer 105

Under ABA and CA rules, a lawyer has a duty to not improperly solicit clients for a fee by means of: in person, live, electronic, or telephonic contact for profit. Pro bono solicitation and solicitation to family, close friend, former professional relationship, former clients, and other lawyers is permissible. * Under ABA and CA, a lawyer cannot: o Conduct in-person solicitation for profit  In-Person: live, electronic, telephone, or real-time electronic communication o Solicit if prospective client makes it known he doesn’t want to be solicited or if the solicitation involves: coercion, duress, OR harassment o Use Runners and Agents to solicit in manner that is prohibited o Send Letter Solicitation, so long as labeled as an ad and not deceptive  Targeted Direct-Mail Solicitations: OK, so long as the person has not expressed that he does not want to be solicited and so long as it meets the same requirements for ads (Feb 2001) o Send emails o Conduct in-person solicitation for free (e.g., pro bono solicitation) o Conduct in-person solicitation for profit for:  Another Attorney  Family Members  Close Personal Friend  Prior Professional Relationship

Question 106

Names of Law Firms

Answer 106

Names of law firms * Attorneys may continue to use names of deceased attorneys, UNLESS it is deceptive to do so * Lawyers must remove their names from firm, IF they act for public service * Trade names of law firms are allowed, so long as they do not imply false connection to government or public or charitable legal services organization * Attorneys cannot represent that they are in a partnership if they are not in the form of a practice

Question 107

Buying and Selling Law Firms

Answer 107

* Seller must stop practicing in that geographic area OR area of practice * The law firm OR area practiced must be sold in its entirety * Written notice must be given to clients and they must be notified that they can get another lawyer * No immediate increase in fees because of the sale