Professional Responsibility Flashcards
Duty to Avoid Unauthorized Practice of Law
Lawyer must not engage in or assist another in engaging in unauthorized practice of law, unless associating with local counsel or appearing pro hac vice on a temporary basis.
This involves assisting ineligible lawyers (i.e. those who are disbarred) in practicing law.
But in CA, it is ok to employ persons ineligible to practice law (i.e. disbarred lawyers) to perform legally-related tasks, such as drafting pleadings or conducting research, so long as the employing lawyer provides written notice to the State Bar identifying and verifying that the person will not engage in the prohibited activities.
Duty to Maintain Professional Independence (to not do business with non-lawyers)
Lawyers may not form a partnership with non-lawyers
Lawyers may also not work in a corporation where a non-lawyer has an ownership interest
Basically, we do not want non-lawyers guiding the decisions of lawyers
Ancillary services
When a lawyer provides ancillary services along with legal services to a client (i.e. social work, accounting, financial planning, real estate, tax preparation), they must abide by the ethical rules in administering both
ABA - lawyer does not need to abide by professional rules in transactions arising out of ancillary services IF the services are distinct and they take reasonable steps to ensure the recipient knows the protections of the lawyer-client relationship do not apply
Duty to report ethical misconduct
ABA - lawyer must report misconduct of another lawyer if (1) he/she has actual knowledge of the misconduct, and (2) the misconduct raises a substantial question as to the honesty of the other lawyer/fitness of the other lawyer to practice law.
Note, in CA, there is no duty to report other lawyers.
In CA, a lawyer must report their OWN misconduct (within 30 days) if (1) they had 3+ malpractice suits filed against them in 1 year, (2) they were subject to a judgment for fraud/breach of duty, (3) they were charged or convicted for felony for crime committed while practicing law involving moral turpitude (4) discipline by licensing board
Subordinate lawyers
Subordinate have to abide by rules of conduct despite orders from supervisor unless there is a doubt as to professional conduct, and the supervisor’s directive is a reasonable resolution as to that doubt
For there to be a doubt, reasonable minds must differ
Duties to avoid frivolous claims
A lawyer must not present a claim or defense not warranted by law unless supported by a good faith argument for extension, modification, or reversal of law
ABA - must not bring a claim to embarrass, delay, or burden a third person is a violation of
the rules.
CA - must not present a claim or defense unwarranted by law to harass or maliciously injure another
Duty of candor
False statements of fact or law -
A lawyer must not knowingly make a false statement of fact or law
A lawyer must correct a false statement of material law
Legal authority -
A lawyer must disclose controlling adverse legal authority.
CA - a lawyer must also not knowingly misquote legal authority
Use of false evidence -
A lawyer may not use evidence knowing it to be false
But if lawyer only has a reasonable belief it is false, lawyer can use it per his/her discretion
Threatening claim to gain advantage (CA Only)
California lawyers are specifically prohibited from threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute. Rule does not apply for threats to bring a civil action.
Communication with a represented party
A lawyer may not communicate with a represented party about the subject matter of that person’s representation, without the consent of their lawyer
For organizations, must obtain consent of organization’s lawyer if talking to anyone whose acts or omissions may impute liability to the organization.
Note, do not need to obtain consent to talk to former employees
Always try and include the following duties:
(1) Conflict of Interest
(2) confidentiality
(3) fees
(4) competence
(5) communication
Duty when dealing with unrepresented persons
When talking to unrepresented parties, the lawyer may not imply that he/she is disinterested
Solicitation
Solicitation is communication by or on behalf of lawyer that is directed to a person the lawyer knows or has reason to know is in need of legal services, and that offers to provide legal services
Cannot solicit prospective clients in person, by live-telephone or by real-time electronic contact (CA only) if significant motive is pecuniary gain
Exceptions:
- family members
- prior professional relationship
- close personal relationship
- a person who routinely uses the type of legal services offered for business purposes (MR only)
In CA - targeted solicitations to a person known to be in need of legal services must include the word “advertisement” on the envelope and at the beginning and end of all recorded or electronic communications
Main aspects -
-define
-types of communication (MR vs CA)
-exceptions
-
Advertising
A lawyer must not make false or materially misleading statements about his/her services
Requirements:
(1) Name and address of attorney or firm responsible for content (CA)
(2) Name and contact information of attorney or firm responsible for content (ABA)
Allowed content:
(1) lawyer’s specializations
(2) fees
(3) degrees/membership/bar admission
Cannot include:
(1) guarantees about outcome
(2) testimonials without disclaimers
Inadvertent communications
A lawyer who inadvertently receives a confidential client communication who knows or reasonably knows it is privileged must promptly notify sender
CA - lawyer must also examine no more than necessary to ascertain that it is privileged
Duty of competence
Lawyer must provide competent representation (must possess skill, knowledge, and preparation reasonably necessary for representation)
CA - includes requisite mental, emotional, and physical ability.
CA - must not intentionally, recklessly, or with gross negligence fail to provide competent representation
If lawyer is not familiar with area of law, he/she can become competent by (1) researching the field if it would not cause undue delay or harm to the client, or (2) associating with an attorney who has more experience in the area of law
Duty of diligence
A lawyer must act with reasonable diligence and promptness in representing a client
CA - lawyer must not intentionally, recklessly, or with gross negligence, fail to provide diligent representation
Duty of communication
Lawyer must regularly communicate with the client and must keep client reasonably informed about status of and significant developments in the matter
Also should consult with client about client’s objectives
Must reasonably consult about the means of representation.
In CA - must notify client about any offer to plea bargain (criminal matters) or any written settlement offer (civil matters). Oral settlement offers must be communicated if significant or material.
Is there a duty to accept representation?
No - unless there is a court appointment
Duty to decline or reject representation
There is a duty to reject if:
(1) it would violate an ethical rule or law
(2) In CA - if lawyer knows or should know there is no probable cause to bring the action and that action is brought to harass or maliciously injure
(3) the lawyer is unable to competently or diligently perform
(4) improper conflict of interest
Scope of representation
Representation begins when client reasonably believe it exists (no writing required); lawyer’s perception of whether there was a relationship is irrelevant
Representation cannot include providing assistance or counsel on conduct lawyer knows constitutes crime/fraud (or in CA, conduct that violates any law or rule). But can discuss consequences of bad actions.
Mandatory withdrawal
Lawyer MUST withdraw when:
(1) continued representation WILL result in a violation of an ethical rule or, under ABA, any law
(2) the lawyer’s physical or mental health makes it UNREASONABLY difficult to carry out representation (under ABA, if it materially impairs representation)
(3) Discharge by client
(4) CA ONLY - if there is no probable cause for bringing the cause of action (or defense) and it is intended to harass or maliciously injure the other party
Permissive Withdrawal
(1) client engages in crime/fraud or used attorney’s services to commit crime/fraud
(2) client has made representation unreasonably difficult
(3) client breaches material term of an agreement
ABA: (Repugnant, Financial Burden, Any Cause)
(4) client insists on course of action lawyer finds repugnant
(5) representation results in an unreasonable financial burden
(6) Any cause if no material harm to client
CA:
(4) client insists on course of conduct that is criminal/fraudulent
(5) lawyer’s physical mental health renders it difficult to carry out representation
(6) inability to work with co-counsel if withdrawal is in best interest of client
(7) client insists on asserting an unwarranted claim or defense without a good-faith basis for law’s modification or reversal.
(8) representation is LIKELY to result in violation of ethical rules
Termination
Clients have an absolute right to fire a lawyer for any reason. Lawyer must withdraw if discharged
Withdrawal Procedure
Must give reasonable notice to client so client can find alternative representation (and court approval, if litigation is underway)
Must take reasonable steps to mitigate harm to client.
Must return all papers and property (in CA, whether the client has paid, and under ABA, to which the client is entitled).
Fees
Fees must not be unreasonable (ABA) or unconscionable (CA)
Relevant factors: (1) time and labor required, (2) hourly rate, (3) difficulty of the case, (4) lawyer’s experience/reputation
Writing requirement -
Writing is preferred under ABA but not required. Writing is REQUIRED in CA if fees > $1000 unless ICHEW (Impracticable, Corporation, History of similar services, Emergency, Waiver by client).
In CA - agreement must be in writing + (1) state fees, (2) state services to be provided, (3) and be signed by both parties.
Contingent Fees
Must be in writing and signed by client (and lawyer, in CA)
Not permitted in criminal cases or domestic cases if fees is contingent on obtaining divorce or on amount of support recovered.
Requirements:
(1) basis and terms for calculating fee
(2) expenses client is liable for
(3) IN CA ONLY - must state that lawyer’s fee is negotiable + whether client will have to pay for related matters not covered by contingent fee agreement
Failure to comply - agreement is voidable by client, but attorney is entitled to a reasonable fee
Fee Splitting
(a) Lawyers in same firm - OK to split
(b) Lawyers from different firms
OK if (1) client agrees in writing to fee-splitting arrangement after full disclosure of arrangement terms (2) total fee charged in not increased due to fee-splitting
ABA - (3) fee is split in proportion to services provided by each lawyer
CA - (3) lawyers must enter into a written agreement at the time of client’s consent
(c) Fee splitting with non-lawyer
NOT OK unless salary to staff or referral service (CA) (plus few more exceptions)
Also remember, for fees generally, in CA fees must not be unconscionable and under ABA, fees must not be unreasonable
Referral fees
ABA - not allowed unless paying the fees of a legal services plan or approved lawyer-referral services. Nominal gifts may be allowed (be sure to analyze whether the fee is a gift or a referral fee)
CA - a lawyer may give a gift or gratuity for a referral provided that the gift or gratuity was not offered in anticipation of the referral or future referrals
Note - referral fees can take the form of money or gifts from an attorney to another person. Look for any form of payment to someone in exchange for referring a client
Duty to segregate funds
In CA, all funds received or held in benefit of clients (including advances) must be deposited in a identifiable bank account labeled “Trust Account,” “Client’s Funds Account” or something similar
A lawyer must keep client funds and property separate from her own. Clients funds must be deposited into a separate client trust account.
Exceptions:
(1) Lawyer’s funds may be deposited into the trust account to pay or avoid bank charges
(2) An award belonging to both the lawyer and client can be deposited into the client trust account if promptly dispersed to the lawyer and client.
TIMING:
In CA, lawyer must inform client within 14 days of receipt of funds or other property
Dispute of funds
When there is a dispute, disputed portion must remain in client’s trust account and undisputed funds must be sent to client
Duty to safeguard funds and property
Lawyer must keep client’s funds and property safe, and must pay or deliver items to which client is entitled to upon request.
Recordkeeping
Must keep records (client ledger and accounting) for 5 years after close of client’s case.
Lawyer-client privilege
Client must intend for communication to be confidential, and must be for purpose of seeking legal advice.
Client holds privilege, but lawyer must assert on client’s behalf.
Termination:
In ABA - privilege is indefinite
In CA - terminates upon death of client and settlement of his/her estate.
Exceptions (Fraud/Crime):
Communications made when client seeks lawyer’s services for client’s fraud/crime (ABA) or anyone’s fraud/crime (CA)
(Disputes):
Communications relevant to a dispute between the lawyer and client, between co-clients, or among a deceased client’s heirs are not privileged
Work-product
In CA - writing that reflects a lawyer’s mental impressions, conclusions, legal theories, or opinions is not discoverable under any circumstances (absolute privilege)
Other lawyer work (i.e. transcripts from interview with witness) product only discoverable if denial of discovery would unfairly prejudice party seeking discovery or will result in injustice
Duty of confidentiality
Lawyer is prohibited from disclosing any information relating to the representation of a client unless (1) disclosure is authorized by the informed consent of the client, or (2) disclosure is impliedly authorized in order to carry out representation.
Lawyer must take reasonable steps to prevent inadvertent or unauthorized disclosure
Exceptions (permissible, not compulsory):
(1) Death or substantial harm (ABA - to prevent reasonably certain death or substantial harm by anybody; CA - to prevent CRIMINAL ACTS reasonably certain to cause death or substantial harm, BUT ONLY AFTER good-faith effort is made to persuade client to not commit crime, and after informing client of attorney’s ability to reveal information)
(2) Financial harm (ABA only - if necessary to prevent client from committing crime/fraud that will cause substantial injury to financial interests of another)
Duty is also owed to prospective clients unless (1) no good-faith intention to retain lawyer, (2) communication is made after lawyer declines representation, (3) when there is no reasonable expectation lawyer will accept representation
Conflicts of interest (Between lawyer and client)
Lawyer may not represent a client if representation may be materially limited by client’s own interests, unless:
(1) lawyer reasonably (objectively and subjectively) believes he/she can provide competent and diligent representation
(2) representation is not prohibited by law, and
(3) client gives informed consent confirmed in writing (ABA) or informed written consent (CA)
Situations (all require written disclosure to client, that representation not be prohibited by law, and reasonable belief that diligent and competent representation may still be provided):
(1) opposing lawyers related (both clients need to give informed consent because both lawyers would have COI with their respective clients)
(2) relationship to a party or witness
Duty of loyalty
Lawyer owes a duty of loyalty to client. When a conflict of interest exists, the lawyer may be in breach of the duty of loyalty. A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties.
Sexual relations with client
prohibited unless a consensual relationship already existed prior to formation of Lawyer-Client relationship (client cannot consent to conflict, it’s a general ban)
Lawyer as a witness
Lawyer cannot act as a necessary witness in an action unless (1) testimony relates to an uncontested issue, OR (2) testimony relates to nature and value of legal services provided by lawyer, OR
ABA - (3) disqualification of lawyer would work substantial hardship on client
CA - (3) client provides written informed consent
Financial Relationships
Interest in Litigation
- ABA - lawyer cannot have a proprietary interest in subject matter of litigation unless (1) contingency fee, or (2) lien to secure payment
CA - no equivalent rule
Financial assistance
- ABA - lawyer may NOT provided financial assistance to client if made in connection with ongoing litigation (exception = lawyer may advance litigation costs, and it is ok to only have client pay back costs on a contingency fee basis; indigent clients do not need to repay)
CA - Cannot pay personal or business expenses of prospective or existing client (but lawyer may advance litigation costs)
Business transactions with client
- Lawyer may not enter into a business transaction with a client or knowingly acquire an adverse interest to client unless:
(1) terms are fair and reasonable
(2) client is advised in writing and given reasonable opportunity to seek independent counsel
(3) client provides written informed consent after being fully disclosed on terms
COI (between current clients)
A lawyer may not provide representation to a client if (1) doing so would be directly adverse to the interests of another current client, or (2) there is a significant risk representation would be materially limited by the lawyer’s responsibilities to the other client, unless:
(a) lawyer reasonably (subjectively and objectively) believes she will be able to provide competent and diligent representation,
(b) representation is not prohibited by law,
(c) the representation is not for parties on both sides of the same litigation or proceeding, and
(d) client gives written informed consent (CA) or informed consent confirmed in writing (ABA).
COI (Current and Former Clients)
A lawyer may not represent a client in a matter that is the same or substantially related to a matter for which the lawyer provided services to a former client if their interests are MATERIALLY ADVERSE to each other unless
ABA - informed consent confirmed in writing
CA - informed written consent
from FORMER client
COI (Current and prospective clients)
A lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter if
CA - the lawyer received MATERIAL CONFIDENTIAL information from the prospective client
ABA - the lawyer acquired information from the prospective client that could be SIGNIFICANTLY HARMFUL to the prospective client
unless both give informed consent confirmed in writing (ABA) or informed written consent (CA)
Payment from a Third Party
A lawyer may not accept payment from a third party unless:
(1) there is no interference with the lawyer’s judgment
(2) lawyer-client confidentiality is preserved
(3) client gives informed consent (ABA) or informed written consent (CA)
Organizational clients
Lawyer representing entity owes a fiduciary duty to entity, not its constituents.
Lawyer may represent constituents as well if there is no conflict (apply rule for COI between current clients)
Organizational misconduct:
- upon learning of misconduct, lawyer must proceed in best interests of organization.
Reporting Within vs Reporting Outside (see other cards)
Organizational misconduct - Reporting Within
When a lawyer knows that an action of an agent of the organization is illegal or likely to cause substantial injury to the organization, lawyer must: (1) urge individual to reconsider, (2) report misconduct to highest authority in the organization
Must always act in best interest of organization.
Organizational misconduct - Reporting outside
If the action is a clear violation of law and the entity fails to act after the lawyer has exhausted internal remedies:
ABA - lawyer MAY disclose misconduct outside of the organization to prevent substantial injury to the organization
CA - lawyer MAY NOT disclose confidential information (unless death/substantial bodily harm exception applies), but may withdraw if client persists in illegal conduct likely to cause substantial injury
Duty to avoid improper influence
A lawyer must not seek to influence a judge, a prospective juror, a juror, or other official by means prohibited by law
Duty of fairness to opposing party
Evidence - A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or hide a document/material, or counsel/assist another person in doing so.
False evidence
A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a witness in testifying falsely.
False evidence - a lawyer may not knowingly offer false evidence and may refuse to submit evidence she reasonably believes is false
If a lawyer learns about false evidence before or after it has been presented, the lawyer must take reasonable remedial measures:
- must urge client to withdraw false statement/evidence
- may ask court to withdraw representation
- ABA - if request to withdraw representation is denied, must notify court of false evidence even if it would disclose confidential information
- CA - lawyer cannot disclose confidential info under any circumstances
Criminal Ds
- if Criminal D refuses to correct false statement lawyer MUST withdraw under ABA (though withdrawal is optional under CA)
- If withdrawal is denied,
CA - can allow D to testify about falsehood in narrative form
MR - must disclose false evidence to court even if it reveals otherwise protected information
Trial Publicity
A lawyer is not permitted to make an out of court statement that he knows/should know (i) will be distributed publicly and (ii) will have a substantial likelihood of materially prejudicing the court proceeding.
General facts about the case, such as the claims and identity of the parties, may be discussed publicly.
However, a lawyer may make a statement to protect a client from the prejudicial effect of publicity that was not initiated by the attorney or client
Prosecutor duties
- A prosecutor must not prosecute a charge that he knows is not supported by probable cause.
- A prosecutor is required to timely disclose all exculpatory evidence and information that tends
to disprove guilt or mitigates the offenses. - New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood that a convicted defendant did not commit the offense.
Opposing Lawyers related
Under MR, a lawyer related to another lawyer (parent, sibling, spouse) may not represent a client in a matter in which the other lawyer is representing another party unless client gives informed consent
Under CA, a lawyer may not represent a client in a matter in which the other party’s lawyer is a relative, lives with the lawyer, is a client of the lawyer, or had an intimate personal relationship with the lawyer, unless informed written consent is obtained.
Asserting personal knowledge
A lawyer may not assert personal knowledge of facts in issue except when testifying as a witness.
Expert Witness Fees
May compensate expert witness fees based on reasonable rate. May also advance as part of costs and expenses of litigation
Gifts to witnesses
ABA and CA allow for reasonable compensation to be paid to expert witnesses. That may encompass gifts so long as the gift was reasonable and not provided with the intent of eliciting favorable testimony.
Duty of Fairness
A lawyer is not permitted to (1) make a frivolous discovery request or (2) fail to make a reasonably diligent effort to comply with a proper discovery request.
Screening
Under the ABA, any COI that arises from a lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if (1) the disqualified lawyer is timely screened for the matter and is apportioned no party of the fee, (2) written notice is given to any affected former client, and (3) certification of compliance with ethical rules and screening procedure is provided to former client at reasonable intervals
Under CA, will not be imputed if (1) L did not substantially participate in previous matter, (2) L is properly screened and given no portion of fee, and (3) written notice is provided to former client
Main difference -
in both, need to provide written notice to client, and need to screen/give no apportionment of fee
Under ABA - OK even if L substantially participated; but also need to give regular updates on screening
Under CA - screening does not protect if L substantially participated
Prosecutor duties - No prosecution without probable cause
A prosecute must not prosecute a charge that the prosecute knows is not without probable cause
Prosecutor duties - No prejudicial statements
May not make extrajudicial statements that have substantial likelihood of heightening public condemnation of accused
Prosecutor duties - Constitutional Guarantees
A prosecutor must ensure that the defendant is accorded all constitutional rights
Prosecutor - advising of right to counsel
Prosecutor must make share that client is advised of right to counsel
Prosecutor - Exculpatory evidence
A prosecutor is required to timely disclose all exculpatory evidence and information that tends
to disprove guilt or mitigates the offenses.
New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood
that a convicted defendant did not commit the offense.
Trial publicity
A lawyer is not permitted to make an out of court statement that he knows/should know (i)
will be distributed publicly and (ii) will have a substantial likelihood of materially
prejudicing the court proceeding.
But can correct prejudicial effect of publicity not initiated by lawyer or client
Out of court statements are more likely to be prejudicial in criminal proceedings
Lawyer may discuss general facts of the case
Prosecutors - Extrajudicial statements of others
Under the ABA and CA, a prosecutor must exercise reasonable care to prevent persons under the prosecutor’s supervision or direction - including law enforcement personnel or employees, from making public extrajudicial statements that the prosecutor would be prohibited from making
Ex parte communications with judge
A lawyer is not permitted to communicate ex parte with a judge unless for logistical matters or emergency communications
Business transactions with client
- Lawyer may not enter into a business transaction with a client or knowingly acquire an adverse interest to client unless:
(1) terms are fair and reasonable
(2) client is advised in writing and given reasonable opportunity to seek independent counsel
(3) client provides written informed consent after being fully disclosed on terms
Runners
Lawyers who employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer are subject to discipline.
In CA, the use of runners is a criminal violation
Reciprocal referral agreements
