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Professional Responsibility Flashcards

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1
Q

Settlement offer ABA

A

atty must
(1) notify client
(2) unless client has previously indicated the proposal would be acceptable / unacceptable, OR previously authorized to accept/reject

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2
Q

Settlement offer CA

A

an atty must
(1) always promptly communicate the amount, terms, and conditions of any written offer of settlement
(2) client must be allowed to make decisions regarding substantive issues of their case
(3) atty must consult with their client and abide by clients decisions in certain matters
(4) including whether to accept settlement

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3
Q

CA when may atty delay relaying info to client?

A

if they believe that communicating the info would cause imminent harm to the client or someone else

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4
Q

ABA what must fee agreements include?

A

(1) fully inform the client as to the nature of the fee agreement and what percentage they will be taking,
(2) what expenses are going to be redacted from the recovery,
(3) when the deductions will be calculated (before or after the contingency fee is calculated, and
(4) what expenses the client must pay regardless of the disposition of the case.

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5
Q

ABA what does an attorney have to do at the end of a contingency fee case?

A

give the client a written accounting showing
(1) the outcome of the case,
(2) the remittance to the client, and
(3) how the remittance was calculated

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6
Q

CA what must fee agreements include?

A

(1) if total will be more than 1k, must be in writing (exceptions for emergency services or a writing is impractical)
(2) must inform in writing that the fee is not set by law and subject to negotiation
(3) state how the client will be charged for work not covered by the fee agreement

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7
Q

ABA how to determine if fee is unreasonable?

A

(1) the time and labor required
(2) the novelty and difficulty of legal issues
(3) skill required
(4) how much time services will take
(5) customary fees in area
(6) atty’s rep
(7) whether fee is fixed or contingent

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8
Q

CA how to determine if fee is illegal or unconscionable?

A

Similar to ABA, but also includes:
(1) atty failure to disclose material facts
(2) atty engaged in fraud or overreaching in negotiating or setting the fee
(3) sophistication of atty and client relatively
(4) client informed consent to fee

  • must be determined on the facts and circumstances at the time of the agreement (unless parties contemplate that the fee will be affected by later events)
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9
Q

What type of fees does CA prohibit (contrast to ABA)

A

illegal or unconscionable (vs. unreasonable)

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10
Q

Separation of funds ABA

A

when an atty receives funds must
(1) place in client trust account
(2) promptly notify clients when received

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11
Q

Separation of funds CA

A

(1) atty owes a duty on reciept to notify client and any third parties to whom atty owes a duty; and
(2) must maintain client trust acct in CA unless with client written consent

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12
Q

ABA - settlement of malpractice claim

A

(1) must advice to retain independent counsel
(2) give reasonable time to obtain independent counsel
(3) must not make an agreement prospectively limiting liability for malpractice unless client is actually independently represented

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13
Q

CA - settlement of malpractice claim

A

Not permitted to prospectively limit liability for malpractice under any circumstances

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14
Q

ABA - Competent and Diligent representation

A

Competence takes into account :
(1) complexity of legal matters
(2) attys general experience
(3) experience in specific legal field
(4) thier preparation and study for the case

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15
Q

CA - Competent and Diligent representation

A

Competence ALSO includes:
(1) mental, emotional, physical ability reasonably necessary to perform the service
(2) must not repeatedly, intentionally, recklessly, or with gross negligence fail to preform legal services competently and diligently

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16
Q

When does atty-client privilege terminate CA

A

when clients estate is settled and personal representative is discharged

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17
Q

What does atty client privilege attach to CA

A

all communications between atty and client irrespective of whether it contains some unprivileged material

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18
Q

CA Work product rule

A

Absolute - absolutely protected (atty thoughts, impressions, conclusions, opinions, legal research, etc.)

Qualified - protected unless showing of unfair prejudice to prepare claim or defense ( all other work product, like witness interview transcripts)

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19
Q

How is atty-client relationship created?

A

by express oral or written agreement of the parties

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20
Q

When may atty limit scope of representation?

A

(1) limitation is reasonable under the circumstances;
(2) the client gives informed consent

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21
Q

ABA and CA Confidentiality rule

A

duty applies to all information relating to the representation of the client,
(1) doesn’t matter where you got it,
(2) doesn’t matter if they asked you to keep it in confidence
(3) doesn’t matter if releasing it might harm or embarrass the client

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22
Q

ABA confidentiality exception

A

prevent client from committing crime that is reasonably certain to cause substantial financial loss to a person if the client is using or has used the attys services to commit the crime

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23
Q

CA confidentiality exception

A

only to the extent that atty reasonably believes necessary to prevent a criminal act that atty reasonably believes is likely to result in death or substantial bodily harm

24
Q

CA and ABA: duties upon termination of relationship

A

must take steps to protect client’s interest (surrendering papers and property to which the client is entitled)

25
Q

When will attys be treated as a firm?

A

(1) they have a formal agreement
(2) hold themselves out in a way that implies a firm
(3) share revenues and responsibilities
(4) share access to client files
(5) routinely discuss client matters amongst themselves

26
Q

When must an atty not represent a client

A

(1) when the representation will be directly adverse to another client
(2) there is a significant risk that the representation will be materially limited by the attys own interest; interests of a current client; former client; or third person

27
Q

When can an atty represent a client despite a concurrent conflict of interest

A

ABA : Client informed consent confirmed in writing

CA: requires informed written consent, meaning disclosures and consent must be in writing

28
Q

What must an atty do if they learn of a conflict after having begun the representation ?

A

must withdraw. UNLESS:
(1) they reasonably believe they can provide competent and diligent representation; and
(2) they obtain informed consent confirmed in writing (CA - disclosure must also be in writing)

EVEN if the above is met, the atty must still end the representation if:
(1) representation is prohibited by law; or
(2) one client is asserting a claim against another client also represented by the atty in the same litigation

29
Q

Duty of competence ABA

A

atty must demonstrate the necessary skill and thoroughness to serve the client

30
Q

duty of competence CA

A

(1) must have the emotional, mental, phys necessary to represent the client
(2) attys must not intentionally, recklessly, repeatedly or with gross negligence fail to represent their clients competently

  • CA atty not subject to discipline for a minor isolated act
31
Q

Duty of diligence ABA / CA

A

ABA: act with reasonable diligence, in client’s best interest
CA: attys must not intentionally, recklessly, repeatedly or with gross negligence fail to represent their clients diligently

32
Q

atty duty to communicate ABA/ CA

A

ABA: Atty should explain enough for client to make informed decisions; keep client up to date; may delay information if they think the client will act imprudently

CA: Atty may only withhold information if they believe imminent harm to the client or others would result

33
Q

Atty’s duty of candor to the tribunal

A

atty must not knowingly make a false statement of fact to the court and must not faail to correct a previously made false statement

34
Q

receipt of document by mistake ABA/ CA

A

ABA: if atty knows or reasonably should know it was a mistake, must promptly notify the sender

CA: only applies if atty knows or should know that the material is privileged or subject to the work product doctrine; must read no more than necessary to determine this; may either (1) return the writing (2) seek agreement with sender to figure out what to do with it; or (3) seek guidance from the tribunal

35
Q

duty to supervise

A

atty with managerial or direct supervisory authority over a nonlawyer must make reasonable efforts to ensure persons conduct is compatible with attys professional obligations

36
Q

Mandatory withdrawl ABA/ CA

A

ABA: if continued representation will violate the rules
CA: if their physical or mental condition renders it unreasonably difficult to carry out representation effectively

37
Q

duty of confidentiality

A

(1) atty must not reveal information relating to the representation
(2) atty must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to information relating to client’s representation

38
Q

duty of loyalty ABA / CA

A

ABA: if atty’s own interests (personal or financial) are likely to materially limit, must withdraw; UNLESS conflict is addressed through disclosure

CA: Even when significant risk of material limitation is nor present, certain relationships always require written disclosure: (1) atty or firm has some kind of relationship to a party or witness in the client’s matter; (2) atty or atty in firm is an immediate family member. lives with, in intimate relationship with etc. another party’s attorney in the client’s matter

39
Q

permissive withdrawal ABA

A

(1) client fails to fulfuill an obligation to atty and has been given warning that atty will withdraw unless obligation is fulfilled
(2) client make representation unreasonably difficult
(3) client wants to take action that atty finds repugnant / fundamental disagreement
(4) withdrawal can be accomplished withtout material effect on interests of the client; OR
(5) other good cause exists

40
Q

permissive withdrawal CA

A

(1) client knowingly and freely assents to termination of relationship
(2) continuation would be likely to result in violation of CA rules
(3) client insists on frivolous claim/defense
(4) attys inability to work with co-counsel indicates that best interest of client will be served by withdrawal

41
Q

how must atty protect client interests on withdrawl?

A

(1) give reasonable notice
(2) allow time for client to find new counsel
(3) surrender papers and property
(4) refund any fees not yet earned or incurred

42
Q

duty to protect client property

A

securities and property should be identified, labeled on receipt and placed in a safe deposit box or other place of safekeeping as soon as possible

43
Q

emergency legal services

A

ABA allows an atty to assist a client even if they do not have the skills ordinarily required if referral or consultation with another atty would be impractical in an emergency (should not exceed what is reasonably necessary to meet the emergency)

  • Atty should limit the scope to emergency legal services to avoid competency issues
44
Q

are contingency fees allowed in a criminal case?

A

no

45
Q

Advancing expenses to client

A

ABA: yes, for pending or contemplated litigation, but may not provide any other financial assistance
CA: permits advancing costs in all contexts

46
Q

referral fees

A

atty must not give anything of value or promise to give anything of value for a person’s recommendation of the attys services

*** but can give gifts if simply a token of appreciation

47
Q

reciprical referral agrements

A

ALLOWED if:
(1) not exclusive and
(2) client is informed of existence of agreement

48
Q

sharing legal fees with a nonlawyer

A

atty must not share legal fees with a nonlawyer unless:
(1) paying a death benefit to a deceased atty’s estate
(2) buying the practice of a deceased atty
(3) including nonlawyer employees in a compensation plan

*CA rules also allow fees to be shared with a lawyer referral service operated in accordance with CA state bar

49
Q

atty partnership with non atty

A

not allowed if any of the organization’s activities consist of the practice of law

50
Q

atty sexual relationship with client

A

not allowed; unless consensual sexual relationship began before the atty-client relationship (lol, very silly)

CA addition: also if client and atty are married or domestic partners, is allowed (BIG lol)

51
Q

is a contingency fee allowed when securing a divorce, alimony, or a property settlement?

A

no

52
Q

Atty prohibited threats in civil case

A

an atty must not threaten criminal, administrative, or disciplinary charges in order to gain client advantage

53
Q

CA rules do not prevent certain threats:

A

(1) to bring civil action
(2) to initiate contempt proceedings
(3) gov’t atty’s offer to make a global settlement or release
(4) general statements that the atty will “pursue all legal remedies”

54
Q

Atty duty to report other atty misconduct ABA

A

Atty who knows that another atty has violated the ethical rules in a way that raises a question as to their honesty, trustworthiness or fitness as an atty has a duty to report

55
Q

Atty duty to report other atty misconduct CA

A

must report if atty knows or has credible information that another atty :
(1) has committed an act that would be a crime in CA; OR
(2) has engaged in conduct involving dishonesty, fraud, deceit, or reckless or intentional misrepresentation or misappropriation of funds or property
(3) that raises a substantial question as to that atty’s honesty, trustworthiness, or fitness to practice law

56
Q

prospectively limiting liability for malpractice ABA/CA

A

ABA: only if client is actually independently represented in making the agreement
CA: never allowed

Bar Exam (20 decks)

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