Professional Responsibility

Question 1

Potential Conflicts of Interest

Answer 1

A potential conflict of interest exists when the lawyer suspects a concurrent conflict may exist, but the representation has not yet been materially limited.

A concurrent conflict exists when representation is: (1) directly adverse to another client or (2) materially limited by the responsibilities to another client, a third party, a former client, or the lawyer’s own interest.

Question 2

Waiver of Potential Conflict

Answer 2

Under California law, a lawyer may not represent more than one client in a matter where there is a potential conflict without informed written consent.

Question 3

Contingent Fee

Answer 3

A contingent fee requires the client to pay a fee only if there is a favorable outcome.

• ABA: Not permitted in criminal cases or domestic matters

Question 4

Requirements of Contingent Fee Agreement

Answer 4

Under ABA and CA law, a contingent fee agreement must be in writing and state the method by which the fee is calculated, including when expenses are deducted

Question 5

California Requirement for Fee Agreement

Answer 5

In CA, if it is reasonably foreseeable that fees will exceed $1K, the service contract must include:
(1) basis of compensation
(2) nature of legal services provided
(3) lawyer and client responsibilities

Question 6

Factors In Determining Whether A Fee Is Reasonable

Answer 6

1. Time Limitations imposed
2. Experience: Lawyer’s Experience Representation
3. Nature and Length of Client Relationship
4. Time and Labor
5. Fee Customarilty Charged
6. Likelihood of Precluding other employment?
7. Amounts involved?
8. Whether contingent

Question 7

Litigation & Other Expense Advances

Answer 7

Litigation Expenses: An attorney may advance litigation expenses to an indigent client and recover them from the contingency fee.

Living Expenses:
- ABA: A lawyer may not advance living expenses
- CA: A lawyer may advance living expenses to indigent client, so long as the advance is a loan instead of a gift AND agreement is in writing.

Question 8

Actual Conflict of Interest

Answer 8

A lawyer must not represent a client if the representation is (1) directly adverse or (2) materially limited by responsiblities to another client, a former client, a third party, or the lawyer’s own interest.

ABA & California require written notice of an actual conflict.

Question 9

Duty of Care/Competence

Answer 9

A lawyer must act with the care, skill, preparation, thoroughness, and diligence of a reasonable lawyer under the circumstances.

Question 10

Sexual Relationships

Answer 10

ABA and CA: A lawyer may not have sexual relations with a client unless the relationship existed before representation commenced.

Question 11

Representation Despite Actual Conflicts

Answer 11

Despite actual conflicts of interest, a lawyer may represent a client if:
(1) the lawyer reasonably believes she will be able to provide competent and diligent representation
(2) the representation is not prohibited by law;
(3) the representation does not involve assertion of a claim of one client against hte other;
(4) each client gives informed written consent

Question 12

Duty of Fair Dealing

Answer 12

A lawyer had a duty of fair dealing to the public and third parties.

Question 13

Special Duties of Prosecutors

Answer 13

Public prosecutors shall
* Refrain from prosecuting charges that are not supported by probable cause;
* Make reasonable efforts to ensure the accused is advised of the right to counsel;
* Make timely disclosure to the defense of all exculpatory evidence;
* Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused;
* Seek to remedy wrongful convictions.

Question 14

Duty to Trial Publicity

Answer 14

A lawyer had a duty to not make public statements that have a substantial likelihood of materially prejudicing proceedings.

A lawyer however may state basic facts about the case.

Question 15

Duty to not present false evidence (CA)

Answer 15

Self-Explanatory

Question 16

Duty of Candor to the Court

Answer 16

A lawyer shall not knowingly:
* Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made,
* Fail to disclose adverse legal authority,
* Offer evidence that the lawyer knows to be false (perjury) – If criminal defendant knows or reasonably believes testimony is false, must allow defendant to testify but:
* ABA: Duty to convince Try to convenience them otherwise, ask court to withdraw, or disclose to court.
* In CA, can’t disclose, let them testify in narrative format.

Question 17

Duty to Opposing Counsel (Duty of Fairness)

Answer 17

As to the opposing counsel and their party, a lawyer shall not:
* Unlawfully obstruct evidence
* Falsify Evidence
* Knowingly ignore court rules
* ABA: Make frivolous discovery requests
* ABA: Request that others avoid giving relevant information/CA: Encourage a witness to make themselves unavailable

**Inadvertent Disclosure: **A party who receives an inadvertently disclosed document must notify the other party (MR). In CA, a party must also refrain from reading as soon as they realize that it was inadvertently sent/that it is privileged

Question 18

Duty to Represented Parties

Answer 18

A duty must not contact a represented person or organization unless they have informed consent from the opposing counsel or are permitted to do so by court order/law

Question 19

Employment Considerations

Answer 19

Duty to Supervise: A lawyer is required to ensure that anyone that they directly supervise comports their conduct with the ethics rules.

Duty of Subordinates: A subordinate must not breach the ethics rules, even at direction of supervisory lawyer. A subordinate does not breach the rules by following the supervising attorney’s guidance if there is a reasonable resolution of an arguable question of professional duty.

Unauthorized Practice of Law: A lawyer may not support a non-attorney in the unauthorized practice of law.

Employment of disbarred attorneys: A lawyer may not hire a disbarred attorney to perform legal functions. However, a lawyer may retain a disbarred attorney to perform non-legal functions if they notify the state bar of the employment and which clients the disbarred attorney is working for.

Question 20

Types of Suits Not Allowed

Answer 20

Duty to file non-frivolous lawsuit: An attorney must not file a claim that does not have a sufficient legal basis. However, an attorney may file a claim if they have a good faith belief that the law could be modified/repealed.

Duty to not file a harassment suit: An attorney must not file a suit that has the primary purpose to harass a party.

Duty to Not Threaten (CA): In CA, an attorney may not threaten administrative, criminal, or disciplinary action to gain an advantage.

Question 21

Advertisment

Answer 21

General: A lawyer may advertise services through written, recorded or electronic communication, including public media, unless the prospective client has made it known to the lawyer of his
desire to not be solicited. All advertisements must:
* Truthful
* State the lawyers’ name and address
* Explain that they are advertisements

A lawyer may not No false/misleading communication: truthful; labeled as advertising; name/address required
Can say specialist if approved by bar
Can say speak language if true.

Solicitation: A lawyer must not solicit in-person, by telephone, or (in CA) real time electronic communication unless: (1) person is a lawyer; or (2) close family relationship

Question 22

Duty to Report

Answer 22

Model Rules: A lawyer with Actual Knowledge MUST report material matters about another lawyer that affect the other’s lawyer’s honesty/fitness

CA: There is no duty to report, except to self-report one’s own misconduct.

Question 23

Withdrawal

Answer 23

Mandatory
A lawyer must withdraw if: (1) client is filing frivolous or harassment lawsuit; (2) lawyer would have to break ethical duty (or other law for MR); or (3) mental/physical health of the lawyer would make continued representation impractical.

Permissive
ABA: Lawyer finds clients actions repugnant or L fundamentally disagrees with them
CA: When the client is unreasonably difficult to work with

Procedures
Must notify client and give them chance to find other representation; if permission is required from tribunal, must get permission first.

Question 24

Scope of Representation (Start + Scope)

Answer 24

Representation begins when the client reasonably believes that they have retained the services of the lawyer. No formal writing is required.

What does it cover: Lawyer manages the tactics; client manages objectives/goals

Question 25

Scope of Representations (Organizations)

Answer 25

A lawyer owes a duty to the organization as an entity, not the individual employees. If they believe that the lawyer is representing them, the lawyer must ensure that they make it clear that this is not the case

Report Up:
If the lawyer learns of something that will cause substantial harm to the company, must urge reconsideration, then lawyer must report it to the higher authorities within the company if not done.

Report Out:
ABA: If higher ups do nothing, under the MR the lawyer may report outside the organization.
CA: The lawyer may not report out unless there is a risk of a criminal act causing substantial harm or death.

Question 26

Duty of Confidentiality

Answer 26

The lawyer must not disclose a client’s confidential information that relates to representation. However, it may be divulged with: (1) informed consent; (2) in the case of implied authorization to carry out the representation; (3) to prevent serious harm or death (must be criminal act in CA); (4) serious financial injury; or (5) an exception applies.

No specific rule in CA but swear oath “maintain inviolate client confidences”

Question 27

Fees (Referrals/Split/Partnerships)

Answer 27

Referrals
A lawyer shall not give anything of value to a person for recommending the lawyer’s services unless it is:
* a qualified referral service approved by an appropriate regulatory authority;
* Gifts may be permissible if nominal or gratuitous

Split Fees
A lawyer may not split fees with a non-lawyer.

A lawyer may split fees with a lawyer from another firm if:
MR: (1) the fees are apportioned based on work; (2) client consents in writing; and (3) fee is reasonable
CA: (1) written agreement between lawyers; (2) notice and informed consent of client about terms (3) fee is not higher because of the joint representation

Partnership
A lawyer may not partner with a non-lawyer if activities constitute practice of law

Question 28

Client Property Management

Answer 28

A lawyer has a duty to protect client property.
* Personal Property - keep separate from own
* Money - A lawyer may not comingle funds and must instead keep client.

Question 29

Duty of Loyalty

Answer 29

Lawyer owes a duty to his clients.

Potential Conflict of Interest
A potential conflict of interest arises when there is a substantial risk the representation of a client **is materially limited by ** a lawyer’s personal interests or the interest of a former/concurrent/third party.

It may be waived if:
(1) the lawyer reasonably believes they can provide competent and diligent representation;
(2) the representation is not prohibited by law;
(3) the clients are not directly adverse in a proceeding; and
(4) the client gives informed consent, in writing (MR) or informed written consent (CA).

CA Personal Interest with opposing counsel
In CA, a lawyer breaches their duty of loyalty to a client if they take on a case where the opposing counsel is: (1) a close relative; (2) the lawyer’s spouse; (3) lawyer’s cohabitant; (4) lawyer’s client; or (5) in an intimate personal relationship with lawyer.

Actual Conflict of Interest
An actual conflict of interest arises when the representation of the client is directly adverse to a lawyer’s personal interest or the interest of a concurrent/former/third party. It may be waived in the same ways as a potential COI.

Question 30

Firm Imputation

Answer 30

Firm Imputation: A conflict for one attorney in a firm is imputed to all other attorneys in the firm, resulting in their disqualification, unless:

MR:
1. Timely screened and not apportioned fee
2. Client is notified in writing;
3. Certification of proper screening

CA:
1. Notification and informed consent from client;
2. Timely screened and no fee; and
3. Lawyer did not substantially participate in matter or related matter

Question 31

Duty of Competence

Answer 31

A lawyer must use their knowledge, skill, thoroughness, and preparation to provide competent representation to the client (MR).

Under CA law, a lawyer must not intentionally, recklessly, grossly negligently, or repeatedly fail to provide competent representation. Competent representation is defined as using the intelligence and skill and the mental/physical/emotional abilities to perform competently.

Question 32

Duty of Diligence

Answer 32

A lawyer must act with reasonable diligence and promptness (MR).

In CA, a lawyer must not intentionally, recklessly, grossly negligently, or repeatedly fail to provide diligent representation. Diligent representation is commitment and dedication to the client. A lawyer need not press every advantage however

Question 33

Duty of Communication

Answer 33

A lawyer must communicate with the client and provide reasonable updates on the status of a case/claim and any settlement offers. A lawyer must also respond to any reasonable requests for information.

Question 34

Business Transaction with Client

Answer 34

A lawyer must not enter into a business transaction with a client or knowingly acquire any interest adverse to a client, unless:
* the terms are fully disclosed in writing,
* they are fair and reasonable to the client,
* client consents in writing,
* and the client is advised to seek out independent counsel.