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Bar Essay > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Lawyer and Client Conflict: General

A

A lawyer may not represent a client if there is significant risk that the representation will be materially limited by the lawyers own interests, unless (1) the lawyer reasonably believes they can provide competent an diligent representation, (2) the representation is not prohibited by law, (3) there is no direct adversity, and (4) the affected client gives informed written consent (CRPC) or informed consent, confirmed in writing (MR)

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2
Q

Lawyer and Client Conflict: Related Opposing Counsel

A

A lawyer may not represent a client when the lawyer is related to opposing counsel unless (1) the lawyer believes they can provide competent and diligent representation and (2) provides written disclosure to the client under CA or receives informed consent from the affected client under ABA.

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3
Q

Lawyer and Client Conflict: CA Written Disclosure Requirement

A

Regardless of whether a conflict of interest poses a significant risk of materially limiting representation, an attorney must still provide written disclosure of their personal relationship with a party or witness to the client.

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4
Q

Lawyer and Client Conflict: Sexual Relationships With Client

A

A lawyer may not have sexual relations with a client, unless there is an on-going consensual relationship that predates the representation.

This is personal and cannot be imputed on to other lawyers in a firm.

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5
Q

Lawyer and Client Conflict: Lawyer as a Witness

A

A lawyer may not act as both lawyer and a necessary witness in an action, unless the lawyer’s testimony relates to an uncontested issue or the nature and value of legal services rendered.

CA: A client can waive with informed written consent

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6
Q

Lawyer and Client Conflict: Lawyer Proprietary Interest In Client’s Claim

A

Under the ABA, a lawyer may not acquire a proprietary interest in the cause of action of subject of the litigation, with the exception of contingent agreements and liens to secure payment.

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7
Q

Lawyer and Client Conflict: Lawyer Financial Assistance

A

Under MR, a lawyer generally may not provide financial assistance to the client if made in connection with ongoing or expected litigation. Under CRPC, no payment of any personal or business expense is permitted.

However, a lawyer may advance court costs and litigation fees, the repayment of which may be contingent on the outcome of the case.

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8
Q

Lawyer and Client Conflict: Business Transactions with Clients

A

A lawyer may not enter into a business transaction with a client, or knowingly acquire an adverse ownership or financial interest, unless (1) the terms are disclosed in writing, (2) the terms are fair and reasonable, (3) the client gives informed written consent, and (4) the client is encouraged to seek independent counsel and given an opportunity to do so.

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9
Q

Lawyer and Client Conflict: Literary or Media Rights

A

Under ABA, prior to the conclusion of representation, a lawyer may not make nor negotiate an agreement giving the lawyer literary or media rights based on the representation.

Under CA, one applies a business transactions analysis.

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10
Q

Lawyer and Client Conflict: Solicitation of Gifts

A

A lawyer may not solicit or draft an instrument that gives substantial gift to the lawyer or the lawyers relatives, unless the client is related to the lawyer by blood or affinity, or, in CA, has been advised by independent counsel.

A lawyer or their relative may accept a gift if it is not the product of undue influence.

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11
Q

Lawyer and Client Conflict: Malpractice Waiver

A

A lawyer may not make an agreement with a client to limit malpractice liability. Under the ABA, a lawyer is permitted to do so if the client is represented by independent counsel.

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12
Q

Conflicts between Current Clients: Generally

A

A lawyer may not represent a client whose interests are directly adverse to another client, or if there is a significant risk that representation would be materially limited by the lawyer’s responsibilities to another client, unless (1) the lawyer reasonably believes they will be able to provide diligent and competent representation, (2) the representation is not prohibited by law, (3) the representation does not involve one client against another client in the same litigation or other proceeding, and (4) each affected client give informed written consent (CRPC) or informed consent confirmed in writing (MR).

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13
Q

Conflicts between Current Clients: Directly Adverse Clients

A

A lawyer may not represent opposing parties in the same lawsuit or transaction.

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14
Q

Conflicts between Clients: Current and Former Clients

A

A lawyer may not represent a client in the same or substantially related matter as a former client if their interests are materially adverse to each other, unless the former client gives informed written consent.

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15
Q

Conflicts between Clients: Current and Prospective

A

Under CA, a conflict of interest exists between a client and prospective client if the lawyer acquired material confidential information from the prospective client.

Under ABA, a conflict of interest exists between a client and prospective client if the lawyer acquired information that would be significantly harmful to the prospective client.

Not imputed if disqualified attorney is properly screened.

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16
Q

Conflicts between Clients: Lawyer Switching Private Firms

A

A lawyer who joins a new law firm may not represent a client in the same or substantially similar matter if (1) the client’s interest is materially adverse to a client of the former firm and (2) the lawyer acquired material confidential information about the former client.

Unless, the former client gives informed written consent.

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17
Q

Conflicts between Clients: Switching form Government to Private Practice

A

A former government lawyer may not represent a client in a matter in which the lawyer participated personally and substantially.

Unless, the government agency gives informed written consent.

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18
Q

Conflicts between Clients: Imputed Disqualification

A

If one lawyer in the firm is conflicted, then the whole firm is conflicted unless the conflict is personal (Related to OPC or Sexual)

Waiver of imputed conflicts informed consent and general waiver of conflict rules.

19
Q

Screening

A

Under the MR, to avoid an imputed conflict when a lawyer switches firms, the new firm may screen off the lawyer from participation in the matter by (1) not apportioning any part of a fee to the disqualified lawyer, (2) the former client receives written notice with screening procedures, and (3) the firm provides certification of compliance if requested.

Under CA RPC, a firm may avoid the imputed conflict when a lawyer switches firms if (1) the prohibited lawyer did not substantially participate in the same or substantially related matter, (2) the prohibited lawyer is timely screened from any participation and not apportioned a part of the fee, and (3) written notice is given to the former client to enable them to ascertain compliance.

20
Q

Conflicts with Third Parties

A

A lawyer must not accept compensation from a third party for representing a client, unless (1) there is not interference with the lawyer’s independent professional judgment, (2) client confidentially is protected, (3) the client gives informed consent.

California requires informed written consent.

21
Q

Threatening Claim to Gain Advantage

A

Under CA, lawyers are specifically prohibited from threatening to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute. This does not apply to a threat to bring a civil action.

22
Q

Claims brought to Embarrass, Delay, or Burden

A

Under ABA, a claim brought merely to embarrass, delay, or burden a third person violates the rules.

Under CA, a lawyer shall not bring legal action without probable cause for the purpose of harassing or maliciously injuring any person.

23
Q

Duty of Diligence

A

Under the ABA, a lawyer must act with reasonable diligence and promptness in representing a client. The lawyer must be dedicated and committed to the interests. However, a lawyer is not bound to press for every possible advantage, such as using offensive tactics or not treating all persons involved with courtesy and respect.

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

24
Q

Scope of Representation

A

The client decides the objectives and goals of the representation. A lawyer must abide by those decisions but has the authority to determine how best to achieve those objectives. A client cannot force a lawyer to act against their professional judgment.

25
Q

Mandatory Withdrawal

A

A lawyer must withdraw when (1) continued representation would likely result in an ethical violation, (2) the lawyer’s health makes it unreasonably difficult to carry out effective representation, (3) the lawyer is fired by the client (subject to court order), or (4) under CA, the lawyer knows or should know the client is making a claim without probable cause and for the purpose to harass or maliciously injure another.

26
Q

Permissive Withdrawal

A

A lawyer may withdraw when (1) the client seeks, has already used the lawyer’s services, or insists to perpetrate a crime or fraud, (2) the client breaches a material term of agreement (payment) and lawyer gives reasonable warning, (3) the client’s conduct makes representation unreasonably difficult, or (4) other good cause exists.

The ABA adds, when (1) there will be no materially adverse effect on the client, (2) there is unreasonable financial hardship on the lawyer, or (3) the client insists on a course of action the lawyer finds repugnant or has a fundamental disagreement with.

The CA adds, (1) there is an inability to work with co-counsel and withdrawal is in the best interest of the client and (2) the client insists on asserting an unwarranted claim or defense with out good-faith basis in law.

27
Q

Duty of Subordinate Lawyers

A

Under MR and CA RPC, a subordinate lawyer must conform to the ethics rules even if acting under the direction of a supervising lawyer. However, the subordinate lawyer does not violate the ethics rules if he acts in accordance with the supervising lawyer’s reasonable solution of an arguable question of professional duty.

28
Q

Duty of Fairness - Discovery Request

A

Under the MR, the duty of fairness requires that a lawyer not make a frivoulous discovery request of an opposing party.

29
Q

Duty of Competence

A

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

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

Under both, a lawyer can make themselves competent through reasonable preparation or by associating with a lawyer of competence.

30
Q

Duty of Fairness - Discovery Production

A

A lawyer must make a reasonably diligent effort to comply with a legally proper discovery request of an opposing party.

31
Q

Duty of Confidentiality

A

Under the MR, a lawyer is prohibited from disclosing information relating to the representation of a client. unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out representation, or other specific exceptions apply.

In California, a lawyer may only reveal confidential information if authorized to do so by the client, or if the attorney reasonably believes that disclosure is necessary to prevent death or substantial bodily harm.

32
Q

Duty of Candor

A

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

33
Q

Formation of Lawyer-Client Relationship

A

The lawyer-client relationship begins when the client reasonably believes that the relationship exists.

34
Q

Duty to Accept/Reject

A

A lawyer does not have a duty to accept representation absent court appointment. However, a lawyer does have a duty to reject representation if it would violate an ethical rule.

35
Q

Duty to Reject: Prohibited Objectives of Employment

A

In California, a lawyer must not (1) present a claim or defense that is not warranted under existing law, unless it can be supported by a good faith argument seeking a change in law or (2) represent a client if he knows/should know there is no probably cause to bring the action and that action is being brought to harass or maliciously injure a person.

36
Q

Scope of Representation: Generally

A

Generally, a client decides the objectives of representation and the lawyer decides the means to achieve those objectives. A client has no right to compel his lawyer to assert issues that the lawyer does not press as a matter of professional judgment.

37
Q

Contingency Fee

A

Attorneys may charge a fee contingent on the outcome of a the case.

However, contingent fees are prohibited in criminal cases and divorce cases.

38
Q

Flat Rate Fees

A

A lawyer may charge a flat fee for specified legal services. A flat fee is a fix amount that constitutes complete payment for the performance of described services regardless of the amount of work ultimately involved.

39
Q

CA Contract Writing Requirement

A

The CA RPC requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client will exceed $1,000.

The signed written agreement must include the basis of compensation, including hourly rates, statutory fees, or flat fees, the general nature of the legal services to be provided, and the contractual responsibilities of the lawyer and the client or else be voidable.

40
Q

Waiver of Conflict of Interest

A

Generally, a client may agree to waive the attorney’s duty to avoid conflicts of interest if there has been full disclosure to the client and the client consents to it in the appropriate form.

41
Q

Reasonableness of Fees

A

Under the MR, fees must be reasonable based on the circumstances which include factors such as the time, labor, and skill required to perform the work. In California, fees must not be unconscionable.

42
Q

Advancement of Court Costs

A

Under MR, a lawyer may advance litigation costs to the client. Although the client usually must remain ultimately liable for those costs, repayment may be made contingent on the outcome of the case.

Under CRPC, a lawyer may advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter.

43
Q

Recovery in Quantum Meruit

A

When a fee arrangement is fixed or hourly and the lawyer’s services are terminated early, the lawyer can recover in quantum meruit for the value of services rendered, although a cap on the lawyer’s recovery may apply.

Bar Essay (13 decks)

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