Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Prep > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Duty of Loyalty

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Introduction

A

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…

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Duty of Loyalty - Actual Conflict

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Duty of loyalty - Potential Conflict

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Duty of loyalty - Imputed Disqualification

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Imputed disqualification under CA rules

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Duty of Loyalty - Conflicts between current clients

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Duty of Loyalty - Conflicts between current clients (CA)

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Conflicts between current clients - opposing sides of a different matter

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Conflicts between current clients - Two clients with inconsistent positions

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Multiple clients in the same matter

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Conflicts dealing with former clients

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Conflicts dealing with former clients - Limited Partnerships (test)

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Conflicts dealing with former clients - leaving firm (test)

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Conflicts dealing with former clients - former government lawyers

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Specific situations that create conflicts

A

(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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Creating Conflicts - Business Transactions with Client

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Specific conflict situation - gifts

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

Specific conflict situation - Financial assistance to client

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

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

A

(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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Specific conflict situation - Limiting malpractice liability

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Specific conflict situation - aggregate settlement / guilty pleas

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Specific conflict situation - sexual relations with client

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Specific conflict situation - L as witness in a jury trial

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Specific conflict situation - Lawyer with clients in relationships

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Specific conflict situation - Proprietary interest in causes of action

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Specific conflict situation - Literary/media rights

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Representing an organization

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Sabanes-Oxley Act

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Duty of Confidentiality

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Duty of Confidentiality Exceptions

A

(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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

DOC Exception - Fraud or Substantial Financial Loss

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

DOL Exception -Lawyer’s claim or defense

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

DOL Exception - Legal Ethical Advice

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

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

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

DOL Exception - Consent or Implied Authority

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

DOL Exception - Death or Great Bodily Harm

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

A-C Privilege

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

A-C Privilege Corporate Clients

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

A-C Privilege Exceptions

A

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.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

Duty of Competence

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Duty of Diligence

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Accepting Representation

A

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.

44
Q

Mandatory Withdrawal

A

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.

45
Q

Permissive Withdrawal - Good Cause

A

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.

46
Q

Withdrawal Procedure

A

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.

47
Q

Withdrawal Corporation

A

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.

48
Q

Duty of Financial Integrity

A

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.

49
Q

CA Writing Requirement

A
  • 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.
50
Q

Exceptions to CA writing requirement

A
  • 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.
51
Q

Contingent Fees Requirements - ABA

A

· 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.

52
Q

Contingent Fees - CA Requirements

A

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.

53
Q

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

A

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

54
Q

Arbitration

A

· 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.

55
Q

Fee Splitting - ABA Rules

A
  • 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
56
Q

Fee Splitting - CA

A

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

57
Q

Referral fees with another attorney

A

· 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

58
Q

Fee-splitting with non-lawyers

A

, 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.

59
Q

Partnership with non-lawyers

A

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.

60
Q

Non-profit (CA)

A

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.

61
Q

Protecting client’s property - duty to not commingle

A

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.

62
Q

Duty to safeguard client property

A

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).

63
Q

Duty to keep good records

A

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)

64
Q

Fees in Dispute

A

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

65
Q

Duty of Communication

A
  • 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
66
Q

Scope of representation

A

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

67
Q

Duties to the court - duty of candor and truthfulness

A

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

68
Q

Duties to the court - duty to state law truthfully

A

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.

69
Q

Duties to the court - duty to uphold the law

A

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.

70
Q

Duty to produce evidence

A

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.

71
Q

Duty to Produce Evidence - Contraband

A

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

72
Q

Duty to Produce Evidence - Interference with Evidence

A

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.

73
Q

Duty to Produce Evidence - Ex parte proceedings

A

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

74
Q

Duty to Produce Evidence - Special Duties of Prosecutor

A

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.

75
Q

Duty to Present Facts and Evidence Truthfully

A

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.

76
Q

Duty not to facilitate client perjury - civil case

A

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.

77
Q

Duty not to facilitate client perjury - criminal case

A

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.

78
Q

Duty not to facilitate client perjury - after proceedings

A

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.

79
Q

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

A

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

80
Q

Duty of fairness to opposing party and counsel - trial tactics

A

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.

81
Q

Special duties of prosecutors - probable cause

A

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

82
Q

Special duties of prosecutors - exculpatory evidence

A

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

83
Q

Special duties of prosecutor - right to counsel

A

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

84
Q

Special duties of prosecutor - waiver/rights

A

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.

85
Q

Special duties of prosecutor - subpoena lawyer

A

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

86
Q

Special duties of prosecutor - public statements

A

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

87
Q

Special duties of prosecutor - innocent evidence

A

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

88
Q

Communication with adversaries

A

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

89
Q

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

A

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.)

90
Q

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

A

 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

91
Q

Communication with Jurors

A

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.

92
Q

Communications with the Court

A

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)

93
Q

Communications about judges and adjudicatory officers

A

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

94
Q

Communications with the press

A

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.

95
Q

Unauthorized practice of law

A

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.

96
Q

Reporting Misconduct

A

· 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

97
Q

Duties of Subordinate Attys - Clear Violations

A

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.

98
Q

Duties of Subordinate Attys - Debatable Violations

A

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

99
Q

Duties of Subordinate Attys - Supervising Attys Ethical Responsibility

A

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.

100
Q

Duty to Preserve Impartiality and Decorum of Tribunal

A

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.

101
Q

Duty to Expedite Cases

A

· 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.

102
Q

Duty to avoid false or misleading ads

A

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

103
Q

DUty to avoid false ads - Under CA rules

A

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

104
Q

Ad Requirements

A

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

105
Q

Duty to not improperly solicit clients

A

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

106
Q

Names of Law Firms

A

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

107
Q

Buying and Selling Law Firms

A
  • 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

Bar Prep (8 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions