Professional Responsibility

Question 1

Duty of Confidentiality

Answer 1

L cannot reveal anything related to the representation of a client

Exceptions: crimes, compel, consent, defending yourself

Question 2

Attorney-Client Relationship

Answer 2

Confidential

CA only

Question 3

Duty of Loyalty

Answer 3

L cannot have any other interest that materially limits loyal representation or is adverse to client unless:

i. L reasonably believes he can present everyone effectively

ii. Inform each affected client

iii. Clients consent in writing

However, if a reas L would not advise a client to consent then consent is invalid

Question 4

Imputed Disqualification

Answer 4

Typically, any group of lawyers that work together automatically share each other’s conflict

CA: L will not be disciplined for imputed conflict

L with conflict joins: conflict will not be imputed if (1) timely and effectively screen, (2) conflicted attorney receives no direct part of the fee, (3) former cleint receives notcie and periodic certification of compliance w/ condition

L w/ conflict leaves: group cannot represent client in a matter adverse to leaving attorney’s client if (1) matters substantially related and (2) any remaining lawyer has confidential, material information

Question 5

COI: Prospective Client

Answer 5

the lawyer shall not represent a client with material adverse interests to a prospective client in the same or substantially related matter if the lawyer received confidential information material to the matter from the prospective client

Question 6

COI: Current Client

Answer 6

Actual vs. Potential

Actual: Shall not represent a client whose interest are directly adverse to a current client

Potential Conflict: May represent clients whose interests are in PC. provided provided (RAD)
- Lawyers Reasonably believes there would be
-No Adverse effect on representation
- There is Disclosure to the client of the potential conflict and the client consents in writing

if actual conflict develops
(a) disclose the conflict to the clients
(b) get further consent
(c) withdraw if consent is not reasonable

Question 7

COI L-C : Bus transactions or adverse interest

Answer 7

(1) terms are fair
(2) fully disclosed in understandable writing
(3) client has opp to consult atty
(4) client provides written consent

Question 8

COI L-C: Publication Rights

Answer 8

Can’t buy rights to client’s story until after rep has ended.

CA: discourages but allows if judge is satisfied that client clearly understands and consents.

Question 9

COI L-C: Loans and advances

Answer 9

Prohibits loans to clients, except for costs of litigation if client indigent and advance of expenses if client promises to pay back.

CA: Prohibits promise of paying client’s debts to gain bus, but allows loans in all matters for any purpose after atty is hired if written IOU.

Question 10

COI L-C: Limiting liability for malpractice

Answer 10

Can’t proscriptively limit malpractice liability

Question 11

COI L-C: Use of Info

Answer 11

Use of communication or info relating to rep of client to his disadvantage violates loyalty and confidentiality

Question 12

COI L-C: Gifts

Answer 12

Can’t solicit substantial gift from client or draft legal instrument if client isn’t relative.

CA: Only prohibits inducing the gift, not drafting the instrument.

Question 13

COI L-C: Close relationship “immediate fam” w. other lawyers in same matter

Answer 13

create potential conflicts. No imputed disqualification for this

CA: Extends to any intimate relationship.

Question 14

COI L-C: Sexual Relationship with client

Answer 14

Strict prohibition on sexual relations with a current client who is not a spouse or registered domestic partner, unless a consensual sexual relationship exists between them when the attorney client relationship commences.

Question 15

COI L-C: Trail counsel as nec W

Answer 15

Typically not allowed, unless lawyer’s appearance will not prejudice the client and testimony is uncontested, or regarding the nature of services rendered. Also, allowed if lawyer’s distinctive value means withdrawal would impose substantial hardship.

CA: Allows lawyer to testify if it is to anyone but the jury or if the client consents in writing.

Question 16

COI: New Clients in Matter related to current or former clients

Answer 16

: If confidential info from former client might be relevant to work on a new client’s matter then can’t take on the new client w/out reas permission from old one (confidentiality/loyalty probs).

i. Do the reps overlap in function, scope, or info?
ii. Use of former client’s non-public confidential info against her is unreas.
iii. If lawyer leaves the firm, the firm might be able to represent the new client but imputed DQ applies to former firm if (1) the matters are substantially related or the same, and (2) any remaining atty has confidential material info.

Question 17

COI: Former gov atty not in private practice

Answer 17

If lawyer worked “personally and substantially” on a “matter” , then lawyer can’t work on the same “matter” later in private practice.
i. Regs are not a “matter.”
ii. Exceptions to imputed DQ for firms of former gov attys:
1. screened off,
2. don’t share any part of the fee in the matter, and
3. gov ER is notified.

CA: Hasn’t adopted this rule but does prohibit crim prosecutors from later participating on defense.

Question 18

COI: Third Party Interference

Answer 18

Sole duty is to client, not to any third party

Question 19

COI: Organizational Clients & SEC

Answer 19

Must act in best interests of entity, even if officer/EE/others act to the contrary. If CEO goes bad, tell him co is client, ask to reconsider or get outside counsel, if he doesn’t then go to board, if that doesn’t work go to outside people, then can always quit.

SEC:If securities atty then must report to CLO/CEO “evid” of any material violation of Sec laws or breach of fiduciary duty by client. If that doesn’t work, must go to board/audit committee/outside directors.

Question 20

Duty of Financial Integrity: Atty Fees

Answer 20

Fee agmts should be reached early and clearly. Non-contingent fee agmts should include how fee is calculated, what services are covered, and the lawyer and client’s duties.
- fees must be reas given totality of cirs

CA: Agmts must be in writing, unless :
(1) fee under $1k,
(2) corporate client,
(3) for routine services for reg client, or
(4) emergency or impractical.
- fees can’t be unconscionably high.Requires atty to agree to submit to arbitration re fees if client wants

Question 21

Duty of Financial Integrity: Contingent Fees

Answer 21

Written fee agmts must be:
(1) signed,
(2) incl contingent %, (3) what expenses to be deducted from recovery, and
(4) whether % is taken before or after expenses deducted.

CA: Also must incl: (1) how work not covered by contingency fee will be paid, (2) fees are negotiable, not some std % of recovery.

Can’t use in domestic relations matters and crim cases.

Question 22

Duty of Financial Integrity: Fee Splitting

Answer 22

OK with atty in firm

OK w/ attys outside firm if
1. written disclosure and consent
2. total amt not too high
3. division must be proportional to work done by each atty

CA: doesn’t require proportionality

Question 23

Duty of Financial Integrity: Referral fees

Answer 23

ABA: Not allowed

CA: Need to obtain informed written consent from the client at the time of the agreement or as soon as reasonably practicable after full disclosure of the fact a division of fees will be made, the identity of the lawyers or firm, and the terms of the division. The lawyers also need to enter into a written agreement to divide the fee and the fee cannot be increased as a result of the division.

• Partnerships w/ non-lawyers in providing legal services not allowed

Question 24

Duty of Financial Integrity: Fee splitting w/ non-lawyers

Answer 24

Not allowed

Question 25

Duty of Financial Integrity: Partnerships w/ non-lawyers in providing legal services not allowed

Answer 25

Not allowed

Question 26

Duty to safeguard clients property

Answer 26

Money held for client must be place in client trust account (and interest bearing accounts). No commingling or borrowing allowed. Trust account must be maintained in California

Question 27

Duty to keep good records for client

Answer 27

Must keep good records, render accountings, notify him of moneys received on his behalf, and pay promptly money due to him.

CA: Must keep records of client prop for 5 yrs after final distributions.