Professional Responsibility Flashcards

Question 1

Q

Definitions

Belief

Answer

A

“Belief” or “believes” denotes that the person involved actually supposed the fact in question to be true.

A person’s belief may be inferred from circumstances.

Question 2

Q

Definitions

Informed Consent

Answer

A

agreement by a client to a proposed course of conduct after the lawyer has communicated adequate information and explanation about the material risks of and reasonably available alternatives to the course of conduct

Requires
* adequate disclosure
* Consent

How it typically comes In a exam

Where the lawyer simply does not provide any kind of opportunity
I recommend this, let us take it
No comms
No weighing of costs and benefits

Be aware of inadequacy of facts as well

Question 3

Q

Definitions

Knowing, Known, or Knows

Answer

A

denotes actual knowledge of the fact in question.

A person’s knowledge may be inferred from circumstances.

Question 4

Q

Definitions

Tribunal

Answer

A

Usually a court
* Key → binding legal judgment
* can be executive administration – look for binding

Question 5

Q

Definitions

Law Firm

Answer

A

Includes corporate law offices, in-house, district attorney offices, public defenders office

Facts and circumstances to look at
* Office sharing, fee sharing, etc.
* How do they present themselves to the public?
* Mutual access to information concerning the clients they serve?

Question 6

Q

Definitions

Confirmed in Writing

Answer

A

Denotes informed consent that is given in writing by the person or

a writing that a lawyer promptly transmits to the person confirming an oral informed consent.

if not feasible at time, a reasonable time thereafter

Example
* We talked today, and you said it is okay that i revealed to the opposing counsel this information because we think it will be strategically advantageous to do so

Email is enough

Question 7

Q

MR 8.5

Jurisdiction

Answer

A

An attorney is held to the standards of their Jurisdiction no matter where the lawyer’s conduct occurred. But can also be held to another Jurisdiction.

Example
* You’re a CA lawyer doing legal work in texas, and you do something unethical
* You can be sanctioned in CA where you’re admitted, in addition to TX

Question 8

Q

Violations of ethical rules

Answer

A

Violations of ethical rules can result in

Administrative sanctions
* Reprimand
* Suspension
* Disbarment

Civil liability

Criminal proceedings

or all of the above

Question 9

Q

When can Lawyers be disciplined?

Answer

A

Breaches of attorney ethics rules
Fraud
Criminal activity

Conduct that has nothing to do with the practice of law but reflects poorly on the attorney

MR 8.4(c)
* Engage in conduct involving dishonesty, fraud, deceit or misrepresentation . . .”
* Basically says when you do anything dishonest, even if it is not related to the practice of law, you can be disciplined in your state or the states in which you are a lawyer

Ex → Fraud, lying, drunk driving, felony convictions, major drug crime, leaving the scene of a fatal car accident, assault/domestic violence

Question 10

Q

State Rules of Ethical Conduct

Answer

A

The Supreme Court of each state typically adopts rules of professional conduct that apply to lawyers in its state.

The ABA Model Rules have profoundly influenced state rules.

Question 11

Q

Lawyers as Fiduciaries

Answer

A

We need to protect the client’s interests as if they were our own interests.

Once the Attorney-Client relationship is created, a lawyer becomes a fiduciary for their client
* Imposes civil liability and gives client independent basis to sue

MR 2.1
* in rendering advice, a lawyer may not refer ONLY to the law but to other considerations such as economic, social & political factors that may be relevant to the client’s situation

Question 12

Q

Vicarious Liability of Attorneys

Responsibilities of Partners, Managers, and Supervisory Lawyers

Answer

A

Partners or other lawyers with managerial authority should make sure all employees in the firm conform to the Rules
* must have a system in place to ensure compliance
* Reasonablility standard

Supervisory attorney become liable for violations of supervised attorneys/non-professionals if they:
* Order
* Ratify
* After learning of a violation, fail to take remedial action

An attorney should ensure that an associate is competent to conduct a trial on her own before giving them that responsibility

Ratify = you know they will do it and you don’t do anything about it

Question 13

Q

Vicarious Liability of Attorneys

Responsibilities of a subordinate attorney

Answer

A

Just because your partner tells you to do something you cannot always rely on having protection!

No Nuremberg defense!
* A subordinate lawyer or staff person cannot defend by saying, “I was only following orders!”

When are you protected?
* If it is debatable, then you are protected. See R 5.2(b).

When are you not protected?
* If a reasonably prudent attorney would know what they are being asked to do is unethical or illegal, then you are responsible regardless of if you are being asked to do it

In other words, if they tell you to do something and at least there’s a reasonable argument that they’re telling you to do is ethical, then you have to follow your boss

The corollary
* if it is not reasonable and you do it anyway, your boss is liable and you’re liable
* “If the question can reasonably be answered only one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it. ”

Question 14

Q

Vicarious Liability of Attorneys

Law students/non-lawyer liability under the model rules

Answer

A

Law students are not subject to the Model Rules, generally, but breach of the Model Rules potentially subjects their supervisors to ethical and civil law violations. (See Rule 5.3)
* Except 8.1 – disclosure rules when you apply to the bar –> dont lie to bar or hold back info
* Also you cannot practice law as a law student

What are the consequences for violating the rules
* You can be questioned, and the info can be used to decide whether to admit you to the bar or not
* Also civil liability

Question 15

Q

Reporting Misconduct by Other Lawyers

Answer

A

MUST report another lawyer who commits violation of the rules that substantially questions the lawyer’s honesty, trustworthiness or fitness as a lawyer

You see an attorney doing dishonest bullshit, you have a duty to report it

Disclosure not required when:
* Confidential info 1.6
* approved lawyers’ assistance program (alcohol recovery program)

The term “substantial” refers to the seriousness of the possible offense and not the quantum of evidence of which the lawyer is aware.

Question 16

Q

The Attorney-Client Relationship

Formation of the Attorney-Client Relationship

Answer

A

“Would a reasonable client presume you were their lawyer?”

Formation of the Attorney-Client relationship does NOT depend on payment or retention, rather, the court looks at the conduct of the attorney.

Focus on the client and what they reasonably believe!

Courts look at what you DID, not what you said.
* Actions speak louder than words so if a lawyer says not a lawyer but does all things a lawyer would do, then likely AC relationship

Very low bar, and creates a sort of “duty” that are elements to a lot of other rules

Question 17

Q

Formation of the Attorney-Client Relationship

Case: Perez → 20 dead children bus driver accident case

Case

Answer

A

While Perez is in the hospital, lawyers came to get a statement
* Perez alleges this establishes A/C relationship

Perez says they elicited a statement from him about the accident and that it should have been confidential
* But lawyers ended up giving the statement to the D.A.

So was there a A/C relation? Rule?
* If your actions and your words would lead a reasonable person to believe that you were their lawyer, then you were their lawyers

Thus, since Perez believed they were his attorneys and thus trusted them, an AC relationship was established.

Does not need to be a legal advice
No fee
No legal agreement

Question 18

Q

Formation of the Attorney-Client Relationship

Case: Westinghouse → Law firm does a confidential survey case

Case

Answer

A

The oil companies believed they had AC relationship because of the nature of the work they did with kirkland
* Confidential interviews
* Confidential surveys

A reasonable member of the trade org would believe that they were being represented

PROBLEM IS you can’t forget the confidential information you
know!
* You can’t unring the bell.

The whole question here is whether Kirkland is an attorney
of API?
* If there is no A-C relationship, there is no fiduciary duty kicked in, so then there would be no conflict/issue.

Appellate court said a reasonable API member would believe they were a client based on facts & circumstances.

Question 19

Q

Formation of the Attorney-Client Relationship

How can a lawyer protect themselves from forming an AC relationship?

Answer

A

If a lawyer should know or reasonably should know that the unrepresented person might misunderstand the lawyer’s role in the matter, then the lawyer needs to make reasonable efforts to correct the misunderstanding. (Rule 4.3)
* LAWYERS DUTY TO CLEAR THINGS UP

What could the lawyers have said in Perez?
* I am not your lawyer but i am here to request a statement

Question 20

Q

Diligence

Rule

Answer

A

A lawyer shall act with reasonable diligence and promptness in representing a client.

Lawyer should pursue matter despite opposition, obstruction, or personal inconvenience to him
Yes, you have to be zealous, but at the same time, you are not obligated to press every advantage if you think it is fair, just, reasonable not to do so
The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect. (Comment 1)

Lack of Diligence example:
* requesting 19 extensions to file a brief in a capital case with no reasonable excuse for failure to comply with court deadlines.

Question 21

Q

Competence

Rule

Answer

A

A lawyer shall provide competent representation to a client.
* Competent representation = the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation

A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation (comment 4)

A lawyer’s work load must be controlled so that each matter can be handled competently (comment 2)

Common causes of incompetence
* Inexperience
* Ignorance
* Neglect
* Lack of time
* High volume of matters

Competence doesn’t necessarily mean you have to know it now but also that you could or are able to learn it

Question 22

Q

Competence

Does this rule mean you can’t work in areas of the law you don’t know about?

Answer

A

No
* A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. (comment 2)

A lawyer can accept legal work that requires knowledge of an area of law in which the lawyer has no experience, as long as the lawyer compensates for the inexperience through study or affiliation with another established lawyer (Comment 2)

Question 23

Q

Competence

Exception

Answer

A

In an emergency a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required where referral to or consultation or association with another lawyer would be impractical. Even in an emergency, however, assistance should be limited to that reasonably necessary in the circumstances, for ill-considered action under emergency conditions can jeopardize the client’s interest.

Example
* your cousin calls you, you are a civil lawyer, he says he is arrested. No one else is available, I can help even if it is a little incompetent.

Question 24

Q

Limiting the Scope of Representation

Answer

A

A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent

If limiting the scope of the representation means the attorney cannot be adequately prepared for trial, it is not reasonable

Examples:
* Representation at a mediation
* In a negotiation of a legal matter, or
* For certain aspects of a complicated case.

Question 25

Q

Follow Client Objectives v. Means

Objectives

Answer

A

A lawyer shall abide by a client’s decisions concerning the objectives of representation

Objectives are decisions that affect the ultimate resolution of the case.

Example
* settlement, do I want to win

Question 26

Q

Follow Client Objectives v. Means

Means

Answer

A

Means shall be consulted, but a lawyer is not required to follow client’s advice

Means refer to decisions that are procedural or tactical

Examples
* cross examination
* granting favors for the otherside for something later (continuation)
* Means is basically your lawyer playbook
* Do I want to ask these questions, or do this another way.

Predominant rule in most jurisdictions → once you consult with the client, you can do what you want
* Our obligation is to only consult the client

Question 27

Q

Follow Client Objectives v. Means

Disagreement

Answer

A

The lawyer should also consult with the client and seek a mutually acceptable resolution of the disagreement.
* If such efforts are unavailing and the lawyer has a fundamental disagreement with the client, the lawyer may withdraw from the representation.

Whether to settle or not → always an objective (say you disagree)
* You can’t go against that
* But you can slow things down – go talk to people bro – you yourself can advise more etc and try to convince more
* Last thing you can do is Memorialize what you did
* Letter to client saying I advise against this move, you can more more, however you are the client and I will do what you want

Question 28

Q

Client Communication

A lawyer shall

Answer

A

Promptly inform the client of any decision or circumstance with respect to which the client’s informed consent is required of these rules.
Reasonably consult with the clients about the means by which the client’s objectives are to be accomplished about the status of the matter.
Keep client reasonably informed
Promptly comply with reasonable requests for Information
Consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by the Rules of Professional Conduct or other law

A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Example of Consult
* So if the client wants to do something that is illegal or fraudulent, you have to be able to draw those lines

Question 29

Q

Client Communication

Offers?

Civil or Criminal

Answer

A

When you get offers–criminal or civil–you, as a general rule, communicate it to the client
* Because of ends and means
* Client always has the authority to settle or not

unless the client has previously indicated that the proposal will be acceptable or unacceptable or has authorized the lawyer to accept or to reject the offer.

Example
* Criminal case → client says if you get any offer of misdemeanor, take it but if felony do not take it!
* If the prosecutor offers misdemeanor, you don’t have to go back to the client per this rule
* Why? Because you already got the authority
* But you probably should regardless

Question 30

Q

Client Communication

Witholding Information

Answer

A

In some circumstances, a lawyer may be justified in delaying transmission of information when the client would be likely to react imprudently to an immediate communication.

Example
* a lawyer might withhold a psychiatric diagnosis of a client when the examining psychiatrist indicates that disclosure would harm the client.

Question 31

Q

Client Communication

Explaining matters

Answer

A

The client should have sufficient information to participate intelligently in decisions concerning the objectives of representation and the means by which they are to be pursued, to the extent the client is willing and able to do so

Example
* when there is time to explain a proposal made in a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement.
* In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that are likely to result in significant expense or to injure or coerce others.
* On the other hand, a lawyer ordinarily will not be expected to describe trial or negotiation strategy in detail.

Question 32

Q

Client Communication

CA rule

slight exception

Answer

A

A lawyer may delay transmission of information to a client if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others.

Question 33

Q

Assisting a Client in a Criminal or Fraudulent act

Answer

A

A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent
* but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and
* may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law.

Example
* Client comes to you and says, I want to put this money some place where it cannot be taxed → and I think I want to do it this way
* And I think – hey if you do it this way, you may come into some problems with tax law
* But if you do it this way and do these things–like saying money is for X or Y– then you can get a tax exemption

Basically sometimes you can explain the law in some way that is a guide for them to commit the fraud or criminal act
* As opposed to explaining a way to not commit the fraud or criminal act
* Your explanation can turn into a tacit approval or tacit instruction

Question 34

Q

Sexual Relations with Clients

General Rule

Answer

A

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced

Question 35

Q

Sexual Relations with Clients

Policy

Sexual Relations is not defined. Go to the comments and see the policy.

Answer

A

The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence.
* The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role
* ACP gets fucked too. When is it in effect and when is not? Muddies the water.

unfair exploitation of the lawyer’s fiduciary role

Example
* So if a girl does not want to fuck me, she might do it anyway because then maybe I wont represent her as well if she doesnt

What do you do in a situation where there is no physical touching?
* Can argue that all the same problems in a non-physical relationship between a lawyer and client are associated with physical sexual relationships.

Question 36

Q

Sexual Relations with Clients

CA Nuance

Answer

A

New rule is the same as ABA but includes a specific definition of sexual relations
* sexual relations requires the touching of an intimate part for arousal.

Question 37

Q

Harassment and Discrimination

Elements

Applies outside the bounds of the AC relationship?

Answer

A

Conduct must be Knowing: “knows or reasonably should know.”
Prohibits harassment OR Prohibits discrimination; AND
On the basis of: Sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status; and
Related to the practice of law

knows = Knowing standard
Reasonably should know = Objective standard → a lawyer of reasonable prudence and competence

Question 38

Q

Harassment and Discrimination

Lawyer engages in “conduct related to the practice of law.”

Answer

A

Related to the practice of the law. Defined by Comment 4 as:
* Representing clients
* Interacting with witnesses, co workers, court personnel, lawyers and others while engaged in the practice of law
* Operating or managing a law firm or law practice
* Participating in bar association, business or social
activities in connection with the practice of law (broad)

Very broad. Including social events.
* CA does not go this far.

Thoughts are NOT considered conduct
* There is debate if anything not listed is “related to the practice of law” because not in text

Question 39

Q

Harassment and Discrimination

Discriminatory or Harassment?

Answer

A

Harassment includes “sexual harassment and derogatory or demeaning verbal or physical conduct of a sexual nature.”
Discrimination includes “harmful verbal or physical conduct that manifests bias or prejudice towards others.”

Question 40

Q

Harassment and Discrimination

Important distinction between rejection based on STATUS of client vs. TYPE OF WORK

Answer

A

There will always be an issue if you are refusing due to the STATUS of the client.

More gray area if it is the type of work – morally repugnant work under Rule 1.16 permissive withdrawal exceptions (i.e. drafting prenup for homosexual couple violates personal beliefs).

A lawyer is allowed the discretion to decide which clients to represent and how to craft their practice according to interests and aspirations AS LONG AS IT IS NOT DISCRIMINATORY

Question 41

Q

Harassment and Discrimination

Things to notice

Answer

A

Is it particularized?
* Focused on a specific person = more likely to violate
* He made an inference based on a person’s status that is protected under the rule

These can get tricky especially with 1.16
* But 1.16 does not allow you to discriminate
* You can reject a rapist movie mogul because you just do not like him and that is ok
* But if it is a protected class, you cannot
* Becomes fact based. Comes down to your reason and the circumstances

Interaction b/w 1.16 and 8.4g
* 8.4 (g) is subordinated to Rule 1.16 that addresses a lawyer’s ability to decline representation or withdraw from representation.
* Except as stated in paragraph 1.16 (c), “a lawyer may withdraw from representing a client if: the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.”

Question 42

Q

Harassment and Discrimination

What if you wanted to help a protected class?

Answer

A

Still would be tricky. The rule is broad, it means that you cannot make those decisions based on protected classes
* Even though that person is trying to help and you can see the good intentions

Limit the scope of your representation to other variables rather than a protected class!
* represents homemakers seeking employment, for example
* If you wanted to do this, you would have to do it in a neutral way that did not run afoul of a protected class.
* They won’t get into your intent as long as things are neutral

You can set geographic boundaries for example

Question 43

Q

Harassment and Discrimination

CA version

Answer

A

In representing a client, or in terminating or refusing to accept the representation of any client, a lawyer shall not . . .

MR rules is much broader including managing the law office, bar associations etc

CA also includes In relation to a law firm’s operations, a lawyer shall not . .

Question 44

Q

Professional Negligence

Elements

Answer

A

The lawyer owed a duty to the client
The lawyer failed to exercise “the competence and diligence normally exercised by lawyers in similar circumstances; and
The breach of duty caused harm to the plaintiff.

Duty
* Only created if there is an AC relationship formed

Breach
* Most jurisdictions permit proof of breach of attorney ethics rules as evidence of breach of duty of care

Causation
* Lawyer’s breach caused P harm.
* But for D’s Conduct, P would have won (case within a case)
* Expert needed unless layperson can determine

Question 45

Q

Professional Negligence

Case: Togstad → wife goes and talks to a lawyer… what can go wrong!

Answer

A

You have to prove the case-within-a-case (CAUSATION)
* In order to prove the negligence malpractice case, you have to prove the medical malpractice case
* Because if she never would have won anyway then we have something similar to “harmless error”
* First is was the doc negligent, then was the lawyer negligent, then we win

What did miller do wrong? (BREACH)
* He rendered an opinion without doing the minimum due diligence
* He did not inform the client of the 2 year statute of limitations

What professional standard does the court hold miller to?
* Must conduct himself as “ordinarily prudent attorney”
* Lawyers owe clients “the competence and diligence normally exercised by lawyers in similar circumstances”

see facts in outline.

What should have he said to avoid this mess?
* We are not interested in this case but you should look at the statute of limitations and see another lawyer. Write this out.
* Don’t even tell her if she has a case or not
* Don’t give advice, you’re adding a little bit of risk

Question 46

Q

Termination of AC Relationship

R 1.16 = 4 subsections

Answer

A

Section A is when you MUST withdraw

Section B is when you MAY withdraw

Section C regardless of whether you meet A or B scenarios
* If the court says you can withdraw, you can withdraw

Section D
* You have to cooperate with a client to help them to get their file, to give them time to go get a new lawyer
* Exiting lawyer must take reasonable steps to keep client going

Question 47

Q

Termination of AC Relationship

Must withdraw

Answer

A

The representation is certain to violate rules of professional conduct
Lawyers physical or mental condition materially impairs the lawyers ability to represent the client;
Lawyer is discharged (fired by client).
the client or prospective client seeks to use or persists in using the lawyer’s services to commit or further a crime or fraud, despite the lawyer’s discussion regarding the limitations on the lawyer assisting with the proposed conduct.

Twist with discharge
* if you are in litigation conduct, each jurisdiction has a rule about when you can withdraw without court permission.
* Once the trial date has been set for litigation, even if you are fired you still have to ask the court to withdraw. Why? → the court has its own interest in its own calendar.

Question 48

Q

Termination of AC Relationship

May Withdraw

7 things

Answer

A

No material adverse effect on the interest of the client
* You don’t want to do this anymore and it won’t impact the client

Client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent
* different from mandatory #2 because you suspect, you don’t know for sure

Client has used lawyer’s services to penetrate a crime or fraud
* It’s all done, you just learned the client used your services to commit a fraud

Repugnant or moral disagreement (broad)
* We don’t want lawyers and clients together if they are not on the same page
* This CANNOT be used for discrimination

Client doesn’t fulfill or substantially fulfill obligations
* Can’t do your job if the client doesn’t fulfill obligations
* meeting for information/depositions, paying bills

Unreasonable financial burden

Other good cause for withdrawal (basically, anything else; catch-all)

Moral Disagreement example
* I do not service gay couples because I don’t believe in gay union vs. gay adoption (harder)

Example (b)(1)
* You have too much work and you’re tired and if you don’t materially adverse the client, then you can

Question 49

Q

Termination of AC Relationship

Court

Answer

A

A lawyer must comply with applicable law requiring notice to or permission of a tribunal when terminating a representation. When ordered to do so by a tribunal, a lawyer shall continue representation in spite of good cause for terminating the representation.
* Litigation only
* Even with good cause, judge can still keep you on it
* even if subsection (a) or (b)

Question 50

Q

Termination of AC Relationship

Termination by drift

Answer

A

Episodic clients → where there is a pattern of client use of the lawyer’s services which leads the client to believe that the law firm still represents it.
* If a lawyer has served a client over a substantial period in a variety of matters, the client sometimes may assume that the lawyer will continue to serve on a continuing basis unless the lawyer gives notice of withdrawal.
* so they will remain clients

how to cure?
* Retainer agreements can state that a client is no longer a client b/w matters.
* You can help manage expectations by how you write your retainer and termination agreements.

Question 51

Q

Termination of AC Relationship

Differences between (must/crime/a4) and (may/reasonable belief crime/b2) and (may/past crime/b3)

Answer

A

Compare (b)(2) to (a)(4)
* Basically you know crime or fraud is ABOUT to happen you MUST withdraw
* In B you have REASON TO BELIEVE IT MAY HAPPEN thus you MAY withdraw
* small difference between know or reasonable believes

(b)(3) to (a)(4)
* Client has used your services to commit crime or fraud
* Its done, you can’t do anything about it anymore
* You can terminate your relationship because you know they did something bad last year using you but you do not have to
* This is about the past
* (a)(4) is present and future

Question 52

Q

Confidentiality

Most basic principle and form of the rule

MR 1.6

Answer

A

Keep client secrets, keep client confidences

Subsection (a)
* Shall not reveal unless

Subsection (b)
* may reveal to the extent the lawyer reasonably believes necessary 1-7

Subsection (c)
* reasonable efforts to prevent the inadvertent or unauthorized disclosure

Policy reasons for this?
* No chilling effect b.w lawyers and clients

Question 53

Q

Confidentiality

Main Rule

Answer

A

A lawyer shall not reveal information relating to the representation of a client unless
* the client gives informed consent,
* the disclosure is impliedly authorized in order to carry out the representation or
* the disclosure is permitted by paragraph (b)

Question 54

Q

Confidentiality

Relating to the representation?

Answer

A

Very broad category; scope:
* Personal information the client would not want revealed

From any source:
* You learned from the witness, docs, video surveillance
* If you’re working on the case → in any way related to the case, and it is something the client would want to keep secret, you gotta keep it that way

Overall → Confidentiality applies to anything related to representation from any source
* Way wider scope than ACP and WPP

Question 55

Q

Confidentiality

So what can you say?

Answer

A

Anonymity
* If you keep names out and specific details out, as long as it cannot be traced back out, keep some level of generality in which there no way that you can identify – you will be ok

You can talk to other lawyers in your law firm about your case because you are treated as one person!

Question 56

Q

Confidentiality

Steps to determining whether client information is confidential

Answer

A

Step 1: Is the information protected?
* Based on whether if there is AC relationship
* Also applies to prospective clients. R 1.18
* Mrs. Togstaad going to see mr. miller, all that information she gave was confidential – even though he never took on the case

Step 2: is it RELATED to representation?

Step 3: any exceptions?

Question 57

Q

Confidentiality

Exceptions

Subsection (a) – the unless clause

Answer

A

Informed consent

Impliedly authorized by representation
* Social security number; address
* All the stuff you might need to know for the purposes of moving the case forward

Client’s consent to disclose confidential info
* Clients may consent for the attorney to reveal confidential info, but should obtain such consent in writing

Question 58

Q

Confidentiality

Exceptions

Subsection (b)(1)

To the extent the lawyer reasonably believes necessary. . .

Answer

A

To prevent reasonably certain death or substantial bodily harm
* Reasonably certain is a HIGH threshold; you need to be pretty sure it’s going to happen if you don’t act

Drug example:
can you tell the client’s father that the client is struggling with opioid addiction?
* probably not, even though opioids are very dangerous.

However, you could give the client information and recommend that she tell her parents.
* (Rule 2.1 – in rendering advice, a lawyer may not refer ONLY to the law but to other considerations such as economic, social & political factors that may be relevant to the client’s situation)

Question 59

Q

Confidentiality

Exceptions

Subsection (b)(2)

To the extent the lawyer reasonably believes necessary. . .

Answer

A

To prevent the client from committing crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another

Requires lawyer services being used. ATTORNEY MUST BE INVOLVED.

People forget this – client says i have this great scam going on this slot machine
* Can i reveal this, no – he did not use my services
* Even if he did, it is still permissive LMAO

Question 60

Q

Confidentiality

Exceptions

Subsection (b)(3)

To the extent the lawyer reasonably believes necessary. . .

Answer

A

Rectifying/mitigating/stopping committing crime or fraud

Confusing with 2 so be careful
* Two is about preventing crime that will happen
* three is about mitigating or rectifying something that HAS happened or is happening

Requires lawyer services being used.
* ATTORNEY MUST BE INVOLVED.

Ex – something had happened and there was still time to cure the loss or fraud
* there is still time and they can reveal the information if they wanted to because maybe some of the money wasn’t spent yet

Question 61

Q

Confidentiality

Exceptions

Subsection (b)(4) & (b)(5)

To the extent the lawyer reasonably believes necessary. . .

Answer

A

Secure legal advice regarding potential ethical violations
* This means you can call the state ethics hotlines or speak to an attorney about the ethics question

To establish a claim or defense in a matter brought between lawyer & client
* Its when the client is suing the lawyer or somehow getting the lawyer in trouble and you can only defend yourself by revealing client conflicts

Question 62

Q

Confidentiality

Exceptions

Subsection b(6) & (b)(7)

To the extent the lawyer reasonably believes necessary. . .

Answer

A

Comply with other law or court order
* Subpoena does not really count

To detect and resolve conflicts
* To detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm
* but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
* has to be done to the extent minimally necessary to uncover it

Question 63

Q

Confidentiality

reasonable efforts to prevent the inadvertent or unauthorized disclosure

Subsection (c)

Answer

A

General provision saying not only you can’t share info unless exceptions apply but also you have to keep it secure

Especially relevant today in the digital world.
* Gotta hire good security
* Shred paper properly

Keep in mind how:
* You communicate with clients (email, text, chat, etc)
* How you store confidential info
* How do you dispose of client docs that may contain confidential info
* Meta data –> Generally, lawyers have the duty to scrub metadata from docs

Question 64

Q

Confidentiality

CA nuances to Confidentiality Rule

Answer

A

Likely to result in death of, or substantial bodily harm to an individual exception: but even if met before revealing the confidential information you have to make reasonable efforts to
* make a good faith effort to persuade the client not to commit or
* let them know if they do it, you will tell.

If it’s dangerous, you don’t have to do it.

It must also be a crime! Not true of Model Rules
Imminence of the harm is not a prerequisite!
Says nothing about crime or fraud (nothing like 2 or 3)
No implied authorized bit

Answer 65

A

Let’s say that you think that the exception is met, but you don’t want to reveal it. or let’s say you’re not sure if it’s met.
* You can withdraw as counsel under 1.16 and then say to the other side, “That document I said about the financial information, I’m withdrawing it.”

They’ll ask why, you just say i’m withdrawing it, that is all i can say
* So that’s called a noisy withdrawal with the idea that you’re tipping off the other side that there is a problem with the financial docs but you are not giving any other info

Answer 66

A

ACP protects confidential communications between attorney and client for the purposes of legal advice
* Confidential
* Communication
* Between lawyer and client (or reps)
* Legal services

Remember, ACP applies in a tribunal or litigation context!!!
* If not in this context, it simply won’t apply

Duty to invoke the privilege
* A lawyer’s general duty of confidentiality under 1.6 imposes a duty to invoke AC privilege when applicable

Answer 67

A

Must be in a confidential setting; confidential email or electronic transmission, or my law office.
* Cannot be sitting in a cafe chatting with people in the room

Parties reasonably believe that their communication is confidential
* On a cellphone, you can reasonably assume that is safe

Objective test

A communication is in confidence if, at the time and in the circumstances of the communication, the communicating person reasonably believes that no one except a privilege person will hear the contents of the communication
* Like if you post it on facebook, sorry
* Crowded restaurant, crowded bar

Answer 68

A

A communication is any expression through which a privileged person intends to convey information to another privileged person or any record containing such an expression
* The idea is to intend to convey information
* If you see the client doing something and the client is unaware you’re seeing them, well, that’s not a communication –> not intending to communicate

Communication can include in person, telephone calls, video conferencing, emails, memos, text messages, etc.

Answer 69

A

“Or their representatives”
* Lawyers often employee people to act on their behalf: legal administrators, paralegals, investigator, experts, law clerks, translators

If those people are communicating with clients and would meet the privilege test, the communications are privileged
* These people would still maintain the part of the test which says between attorney and the client

Generally, if a non-privileged person is present during the communication, the privilege is absent
* Courts have found exceptions to the general rule above when other persons are needed to facilitate communication, such as interpreters, parents of a minor child, and people present for legitimate psychological support

Answer 70

A

Let’s say a client comes to your office and they communicate with you in your office (confidential) → and let’s say they talk to you about their kids soccer game
* Not privilege

But let’s say they communicate legal shit and soccer game
* That will be privilege

Attorney client privilege protects an attorney’s communication with prospective clients as well. 1.18.

Answer 71

A

The underlying facts are not protected these come out a trial

Here is the thing, what the plaintiff told the lawyer could be the exact same set of facts, but because the opposing lawyer is asking for what happened, what transpired between the attorney and client
* they are trying to get to the communications between the attorney and client
* This kind of communication is protected

Example
Smith who is under criminal investigation is asked the following questions by prosecutor concerning information he learned in a conversation with Jones:
* What did you tell your lawyer that Jones said to you?
* What did Jones say to you?

Does the attorney client privilege protect both questions?
* NO – the first one is protected not the second

Answer 72

A

Email between the attorney and county officials discussed the law on strip searches → assessed existing county policy → recommended alt policies.
* Court held that these were emails for the predominant purpose of obtaining legal advice.
* Did not matter that there were policy discussions in the email.
* Attorneys talk about all kinds of stuff with their clients

In rendering legal advice, a lawyer may address “benefits, risks or costs in terms of expense, politics, insurance, commerce, morals, and appearances.”
* This does not forfeit ACP, so long as the “predominant purpose of the communication is legal advice.”

Answer 73

A

Statements made by the client to the attorney, even though in confidence, are not privileged if the purpose of the communication is to further crime or fraud
* Applies only to ongoing and future fraud, not past fraud
* Does not have to involve lawyers services

not the same as 1.6 confidentiality exception

Dispute with the attorney:
* Conrad is suing Larry for malpractice.
* Conrad cannot prevent the disclosure of privileged information that is relevant to the malpractice issue

In most jurisdictions, ACP survives death of client

Answer 74

A

When dealing with entities the issue is:
* Under what circumstances in the course of an attorney interacting with employees does the attorney client relationship apply?

Rule
* Lower level employees can enjoy privilege if they are communicating for the purposes to provide legal advice and within the scope of their employment
* if not an employee, not covered

A corp can have thousands of employees so it can be difficult

If you want to think of upjohn in the most basic way
* People who control the litigation are covered but also anybody at any level who has information relevant to the litigation that came from the scope of their work

Answer 75

A

(1) The communication is between a lawyer or her representative and the representative of the company
* Must be an employee of the company
* Todd the security guard

(2) The communication was made for the purpose of securing legal advice
* Important

(3) The employee (or former employee) making the communication did so at the direction of his corporate superior

(4) The supervisor made the request so that the corporation could secure legal advice

(5) The subject matter of the communication is within the scope of the employee’s (or former employee’s) corporate duties
* The idea is that the employee learned about whatever the lawyer needs from doing it at work

(6) The communication is not disseminated beyond those persons who, because of the corporate structure, need to know its contents.

Legal advice = legal services

Don’t take too literally “at the direction of corporate superiors”
* Like a corporate counsel is working for a company on a legal problem, usually a litigated matter, then you can assume that they’re acting at the direction of the superiors

The idea is that the employees are being questioned based on their knowledge within the scope of their duties at the corp
* They’re getting information that they obtained through the course of the duties that they perform for the organization.
* And they know that they’re in a conversation about the litigation aspect of the case through talking to the attorneys.
* Applies paralegals or the administrators.

Answer 76

A

As a DEFAULT, you don’t get anything prepared in anticipation of litigation (i.e. witness deposition summary).
* But there are exceptions if it is otherwise discoverable AND the other side has a substantial need (magic language) and can’t obtain substantial equivalent by other means without undue hardship (magic language).

LITIGATION CONTEXT

Example of substantial need and can’t obtain substantial equivalent:
* if someone died or is not in reach

Can request reasonable redactions to mitigate.

Answer 77

A

In meeting R26b3 standard to obtain material that meets the elements of WP, it is insufficient to show that the material simply will help your case
Must show material is essential and that its equivalent cannot be acquired by other means
In the case of witnesses, the party must show that he is “dead, beyond the court’s reach, hostile, or memory impaired”

Answer 78

A

Primary Purpose Approach
* As long as primary purpose motivating is in anticipation of litigation, falls under work product doctrine. Important because sometimes there is a mixed motive. (Doing x primary because), has to be MORE THAN 50%.
* PURPOSE OF CREATING IT, NOT USING IT
* IF THERE’S ANOTHER PURPOSE, ASK DOES IT SUPERSEDE IT?

In deciding whether the party meets the anticipation of litigation standard, it will look to the extent the tangible items or docs were created in the usual course of business
* Wont have WPP

For example, as a general rule, incident reports that employees are required to complete when customers are injured do not enjoy WPP because they are prepared for business purposes

Answer 79

A

Products anything created by a representative of the party
* Broader than Hickman

Only protects documents and tangible things
* But Hickman would protects intangible things, such as attorney memories and mental impressions (narrower than Hickman)

Privilege log
* Make the claim and describe the nature and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim

Answer 80

A

You have a duty to determine whether conflict of interest exists
* adopt reasonable procedures

Attorney and firms
* If one attorney and the firm have a conflict, then all attorneys in the firm have a conflict → no matter how big or small

Ignorance is not a defense!
* Conflicts can slip by, but the court will say, what is the procedure that you have in place, and if those procedures are not reasonable, ignorance is not going to help

Answer 81

A

Civil liability
Ethical violations
Loss of fee
Disqualification (and thus loss of fee)
Court sanctions
Embarrassment
Poor client relations

so legal sanctions and business repercussions

Answer 82

A

Client? → Is the AC relationship established?
* No client → no conflict
* What type of client? None? Concurrent? Former? Prospective?

Conflict? → Is there a conflict?
* Potential conflict? Successive conflict? Concurrent conflict?

Consentable? → Is the conflict consentable?
* You can asked them to waive
* Just because conflict, does not mean cant work

Consented? → Has it consented to?
* If consentable, has consent been properly obtained?
* Informed consent, confirmed in writing
* Need to have informed consent. Need to tell client costs and benefits of moving forward with the conflict.

Answer 83

A

a lawyer shall not represent a client if the representation involves a concurrent conflict of interest

concurrent conflict of interest exist if:
* The representation of one client will be directly adverse to another client; or
* There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or a personal interest of the lawyer

A concurrent conflict is one between two current obligations of the lawyer
* two clients
* a client and another person
* a client and the lawyer’s own interests

Answer 84

A

A lawyer who represents client A in one matter and sues client A in a second matter

Litigation Context
* on both sides of the v.

Transactional
* A client undertakes an adversarial negotiation against a client
* For example, if a lawyer is asked to represent the seller of a business in negotiations with a buyer represented by the lawyer, not in the same transaction but in another, unrelated matter, the lawyer could not undertake the representation without the informed consent of each client.

Not Consentable

direct adversity: common situations
* a lawyer who represents client A in one matter sues client A in a second matter on behalf of client B. (Another lawyer might be representing client A in the second lawsuit)
* the lawyer acts adversely to a client in litigation. (e.g., by cross-examining him) –> a lawyer is called to cross one of their clients in a trial invovling charges against another of their clients pg. 354
* Outside of litigation, a lawyer undertakes adversarial negotiation against another client.

Answer 85

A

You represent P and a Partner in your law firm can represent D → partner is other side of country
* In conflicts, every single attorney is treated as one attorney

Lawyer 1 of a firm represents the husband in a PI matter (case 1). Lawyer 2 of the SAME firm represents the wife in a divorce matter against the husband (case 2).
* It does not matter that case 1 and case 2 are different types of cases.
* The law firm that represented you now suing you is not good (disloyal act, not good for profession).
* Also → potential confidential information

Lawyer represents ballet dancer in an employment negotiation with the ballet company. Ballet company asks lawyer to represent it in a real estate negotiation with Lincoln Center. Does lawyer need ballet dancer’s consent to represent the ballet company in the real estate negotiation?
* Yes, because they are directly adverse.
* You represent the ballet dancer and ballet company
* Even though not the same litigation → they are adverse to each other you represented one of them and then you represented the other

you can never sue your own client. even if a different lawyer reps them!! page 351

Answer 86

A

Although not a direct conflict, the lawyer’s other duties and responsibilities create a potential conflict that might undermine the lawyers ability to fully represent the client;s interest
* Loyalty to another client
* Loyalty to a former client
* Lawyer’s own financial interests
* Lawyer’s relationship with a third-party or organization

This means it is not a direct conflict, but may make representation hard.

Answer 87

A

a lawyer asked to represent several individuals seeking to form a joint venture – ask “if they had their own attorney, how could the attorney act differently? (Usually w/ joint ventures, atty can’t give advice that an independent lawyer can give)
* The individuals have not formed a company yet so we don’t even know what kind of business organization they will have
* Individual attorneys would argue different business structures
* However, a benefit is you can save money, so individuals may consent to it

Answer 88

A

Usually w/ co-litigants, atty can’t give advice that an independent lawyer can give
* Issues when one party has a better settlement offer than another, one party wants to settle but one doesn’t.
* Another issue with conditional settlement offers (if you accept x for D1, I will give you y for D2)
* Also → remember comparative fault Jx’s; can’t shift blame
* Issue with insurance of defendant if it is a PI case, you maybe pinning them against each other to get biggest recovery

Answer 89

A

may materially limit a lawyer’s ability to render objective advise or zealously represent the client
* I.e. you are being ask to sue a big company you are an investor in

Personal interests can be imputed
* if it threatens client loyalty or protection of confidences
* so if it has a significant risk of materially limiting the representation

Examples of a lawyers’ personal interests
* strong political beliefs antagonistic to the goals of a client being represented by the firm
* Family relationship with a party who is in litigation against a client of the firm

Answer 90

A

Ordinarily a lawyer may take inconsistent legal positions in different tribunals at different times on behalf of different clients.
* A conflict of interests exists if there will be significant risk that a lawyer’s action on behalf of one client will materially limit the effectiveness of representing a different client.

how likely is it that one case influences the other

Look at whether:
* the cases are pending, the temporal relationship between the matters (how close the proximity), whether it was substantive or procedural, the significance of the issue to the immediate and long-term interests of the clients involved and the clients’ reasonable expectations in retaining the lawyer.

Examples
* When a decision favoring one client will create a precedent likely to seriously weaken the position taken on behalf of the other client.
* Look at if they are in the same jurisdiction
* Will one of the cases lead to precedent?
* Keep in mind district court, which usually do not publish opinions v. courts that do like appellate

you could get these waived

Answer 91

A

Simultaneous representation in unrelated matters of clients whose interests are only economically adverse does not ordinarily constitute a conflict of interest and thus may not require consent of the respective clients.
* such as representation of competing economic enterprises in unrelated litigation
* It must not be litigation or transactional adversity

two clients can be economic competitors, but as long as the lawyer is not representing one of them against the other, it should be ok

Answer 92

A

While lawyers are associated in a firm, none of them shall knowingly represent a client when anyone of them practicing alone would be prohibited from doing so by rules 1.7 or 1.9, unless
* (1) – Prohibition is based on a personal interest of the disqualified lawyer and
* does not present a significant risk of material limiting the representation of the client by the remaining lawyers in the firm; or

if the client’s interest do not conflict with the interests of another client but conflict with. the personal interests of a particular lawyer in the firm, those interests are not imputed to other lawyers in the firm.
* other lawyers at the firm may represent the affected client without that client’s informed consent.

(c) a disqualfication prescribed by this rule may be waived

the work you do as a law clerk or extern during law school will not be imputed to your future employees
* if a conflict arises from work that was done by a nonlawyer, the conflicted person must be screened from personal participation in the matter

Answer 93

A

The rule in paragraph (a) does not prohibit representation where neither questions of client loyalty nor protection of confidential information are presented.
* Where one lawyer in a firm could not effectively represent a given client because of strong political beliefs, for example, but that lawyer will do no work on the case and the personal beliefs of the lawyer will not materially limit the representation by others in the firm, the firm should not be disqualified.
* On the other hand, if an opposing party in a case were owned by a lawyer in the law firm, and others in the firm would be materially limited in pursuing the matter because of loyalty to that lawyer, the personal disqualification of the lawyer would be imputed to all others in the firm.

Answer 94

A

Even when no client-lawyer relationship ensues, a lawyer who has learned information from a prospective client shall not use or reveal that information, except as Rule 1.9 would permit with respect to information of a former client.

How can prospective clients preclude you from representing a client in future cases? → if confidential information is given
* Tactic: “shopping” for attorneys that the other side might hire & give confidential info to conflict out those people

Answer 95

A

1.9 articulates the standard used to assess when a lawyer needs the consent of a former client to proceed with the representation of a subsequent client
1.7 lays out how a lawyer should evaluate whether a conflict that may impact a present client

example of both rules situation
* new client wants lawyer lawyer’s former client, whom lawyer represented for years on a variety of matters
* this conflict can be waived by informed consent of present and former client unless too severe

How do we determine when a current client is a former client
* It is what the reasonable client would believe
* A one off representation does not lead to believe current but a series plus other facts would push that way

Answer 96

A

A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client
* unless the former client gives informed consent, confirmed in writing.

Answer 97

A

if you formerly represented a client in a matter, you cannot represent another person in the same matter if interests are materially adverse
* most obvious = single transaction or lawsuit.
* it is the same matter if the new representation involves a document (such as a lease or contract) that the lawyer was involved in producing –> the subject matter is the same

need informed consent

side switching
* a lawyer may not switch sides during a negotiation or litigation (same matter, materially adverse interests)
* a lawyer may not switch sides and attack an instrument that the lawyer drafted
* cannot switch sides on an appeal

Answer 98

A

A matter can be “anything that is the subject of representation”
* Transaction, litigation, advice, regulatory filing, a subject on which a client requests advice

A conflict may arise between a former client and a current one regarding a service to the former client that did not involve adversarial advocacy – perhaps the client just sought advice – and a subsequent, more adversarial matter

Answer 99

A

the degree to which the current representation may actually be harmful to the former client
* present if former client can i.d some specific material, legal, financial, or other identifiable concrete detriment that would be caused by current representation
* present when lawyer would rep a client in litigation against a former client
* typically present ^ but negotiation
* sometimes present when a lawyer attempts to attack her own work or to undermine that work or result achieved for former client

Answer 100

A

A lawyer who has formally represented a client in a matter shall not represent another person in a substantially related matter if their interests are materially adverse

test
* Met if there is a substantial risk that the lawyer could have (NOT THAT THEY DID) obtained confidential information in the first representation that is materially adverse to the second representation
* type of matter in the second representation can be different

Examples
* Concrete facts
* Playbook information: may create substantially related (i.e. knowing the company will generally settle, as a consequence would make you more effective as a counsel)

Answer 101

A

Facts
* Law Firm assists employee and firm in a stock transfer
* in the process, firm gives law firm confidential financial information to value the stock. firm pays law firm’s legal bills
* employee leaves firm and starts competitor company, analytica. they sue firm for antitrust

Legal standard
* substantially related = if the lawyer could have obtained confidential information in the first representation that would have been relevant in the second.
* Here, it is easily met because of all the financial information obtained
* must be materially adverse as well

Note that the matters were substantively different legal issues
* The first was tax help, the second was antitrust.
* But that made no difference. Why?
* Because the information in one could be used on the other, THAT IS WHAT MATTERS

Is there a substantial risk that a lawyer representing a client in a matter like the one handled for the former client would have learned confidential information in the first matter that could be used to materially advance the new client’s position in the second matter? ask these questions:
* what types of information would a lawyer handling a matter like the first one normally have acquired?
* is there a substantial risk that that information, if revealed or used on behalf of the second client, would materially advance the client’s position in the subsequent matter?

Answer 102

A

a lawyer who has represented a businessperson and learned extensive private financial information about that person may not then represent that person’s former spouse in seeking an increase in alimony and child support
* this info could be used to materially advance the wife’s position in the alimony and child support

a lawyer who has previously represented a client in securing environmental permits to build a shopping center would be precluded from representing neighbors seeking to oppose rezoning of the property on the basis of environmental considerations; however, the lawyer would not be precluded, on the grounds of substantial relationship, from defending a tenant of the completed shopping center in resisting eviction for nonpayment of rent
* assuming environmental info is irrelevant to the eviction, BUT what if not paying rent is because of toxic waste, then different. SO IT IS HIGHLY FACT DEPENDANT
* so just because no absolute common facts, does not mean no substantial relation

what if the information that the lawyer learned in the previous representation has become public or is obsolete?
* the lawyer is not precluded from representing the new client

Answer 103

A

Like you have to have worked somehow in the case, and even working in the case, you have to have worked in a position in the case that gave you access to the information
* So if you just researched the law and did not have access to facts, did no applying of facts to the matter then you have a good arg
* Courts are looking for working on the case, access to the file

the nature and facts of the representation are very important

Answer 104

A

A lawyer cannot represent a person in the same or substantially related matter in which your firm represented priorly if adverse to client’s interest & you obtained info.
* If you haven’t personally been involved but it was imputed from other people at the firm, NO conflict. Conflict ONLY moves if you obtained actual information → Differs from 1.9A.

You may have actual information even if you did not work on the case (i..e talking to other colleagues)

Answer 105

A

Ali works for Vedder Price 2025
* other lawyers at VP defend a Boeing Case

Ali goes to Cooley 2035
* Spirit asks Ali to sue Boeing for breach of Contract

this is just like other successive conflict cases but Ali did not work on the matter personally.
* here, we use 1.9b
* Thus, we ask whether Ali ACTUALLY acquired material confidential information.
* and materially adverse

Burden of Proof
* would be on Cooley and Me to prove that the lawyer who changed firms does not possess confidential info that is material to the new matter

Look for:
* management responsibility v. junior associate stuck to his department only
* other facts

Answer 106

A

we cannot undo work we’ve already did for the client
* I win an appeal, I cannot go and undo it

Even in the absence of any confidences, an attorney owes a duty of loyalty to a former client that prevents that attorney from attacking, or interpreting, work she performed, or supervised, for the former client

Answer 107

A

Must be timely screened (must occur before going to the firm so they can deny you access to the files, etc.) – isolated from any involvement and cannot get paid directly from the matter
Client needs to be notified but client doesn’t need to consent, need to give some details about procedure
have to be updated at reasonable intervals

nonconsenual screening = dont need informed consent

can proceed with obtaining informed consent if complies with screening procedures
* cannot use if 1.7 is involved

Answer 108

A

the conflict leaves the firm with the lawyer unless:
* the matter is the same or substantially related
* a remaining lawyer at the former firm of the lawyer knows material confidential info about the client

Answer 109

A

The lawyer reasonably believes that she can provide “competent” and “diligent” service to the affected clients; (objective standard)
* Ex: Cannot provide competent & diligent service when representing both biological and adoptive parents in an adoption

Not prohibited by law

Does not involve an “assertion of a claim by one client against another client in the same litigation or other proceeding in a tribunal”; and
* Both sides of the “v” (even if its different lawyers, if they are from the same firm it still counts)

Each affected client gives informed consent, confirmed in writing
* Explain basis of consent in the writing (to protect yourself)

Even if conflict is consentable, has consent been properly obtained?
* need inforned consent. tell client costs and benefits.

Answer 110

A

Subject to Rule 1.9(c); AND
* cannot use representation to the disadvantage of the former client

Cannot represent a client in connection with a matter in which the lawyer participated personally and substantially as public officer or employee
* unless gov gives informed consent, in writing

different than 1.9(a)
* if the lawyer participated personally and substantially in work on a matter while working in gov, the lawyer may not represent a client in connection with that matter unless gov gives informed consent
* Material adversity not a requirement

Answer 111

A

any judicial or other proceeding, application, request for a ruling or other determination, contract, claim, controversy, investigation, charge, accusation, arrest or other particular matter involving a specific party or parties

(a)(2) personally and substantially
* disqualifies lawyers only from work on matters involving specific parties, rather than extending disqualification to all substantive issues on which the lawyer worked.

Matter may continue in another form
* in determining whehther two particular matters are the same, the lawyer should consider the extent to which the matters involve same basic facts, same related parties, and the time elapsed
* page 547

Answer 112

A

exercised through decision, approval, disapproval, recommendation, the rendering of advice, investigation

to participate personally means directly
* even if through a subordinate when directed by former gov attorney

Answer 113

A

If you have confidential gov’t information you acquired as a public officer or employee, you may not represent a private client whose interests are adverse to that person in a matter in which the information could be used to the material disadvantage of that person
* The government is prohibited by law from disclosing to the public or has a legal privilege not to disclose and which is not otherwise available to the public. (Doesn’t apply if it is publicly available)
* Needs actual knowledge

gov agency cannot consent

Examples: grand jury evidence,tax returns, trade secrets, information from gov’t investigations such as SEC or EPA

Answer 114

A

Can still work at the firm if:
* The disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee therefrom and
* Written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule.

Gov’t entity can sometimes consent to you working on the matter:
* Confidential gov’t information cannot be consented to.
* However, you can consent to if you participated personally & substantially but didn’t get confidential gov’t info (1.11(a)(2)) = informed consent, in writing

Answer 115

A

No. Can’t negotiate for private employment with any person who is involved as a party or as a lawyer for a party in a matter in which the lawyer is participating personally and substantially
* except law clerks.

Answer 116

A

Applies if you participated personally or substantially as a judge, arbitrator or law clerk or other 3rd party neutral
* There will always be a conflict unless it’s waived

Answer 117

A

1.7 and 1.9 still apply
* especially 1.9(a) which does not apply when gov to private

Shall not participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment
* unless the appropriate government agency gives its informed consent, confirmed in writing

Also cannot negotiate for private employment with a gov’t employee
* unless they are a clerk.

Answer 118

A

You have to have a good faith reason to file & we have a duty to investigate
* can include wanting to change the law
* needs to have some basis in law or fact
* cannot be frivolous
* D can just defend

How thoroughly? It depends on the case and how much time you have
* So like if you have no SoL bearing on you, you can investigate a lot
* But sometimes you are under time pressure and the court takes this into consideration

Answer 119

A

Applies only to paper and it must be signed
* The complaint, the answer, motion
* You are certifying that you have a good basis to do what you are doing, like file that allegation

Investigation requirement
* Formed after an inquiry reasonable under the circumstances
* The court will look at how much time did you have, what kind of case is it
* Did you do the kind of things that a reasonable lawyer would do to make sure the client is saying what they are saying

it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation

**R11 sanctions can be imposed by motion **
* First serve it on offending party. Give them 21 days to withdraw or correct. Rule 11(c)(2). (Safe Harbor Provision); then, file it with the court.
* sua sponte – Of its own motion
* Most common sanction is fee shifting

Empty head, good heat defense
* It means that if you bring an action, that you truly believe as the lawyer, has a legal basis – but it actually does not – that will not be a defense
* objective test

Parties can be sanction under R11
* For factual information they provide you that is clearly wrong and knew should be wrong – objective test
* I was fired for being black! But really they just quit
* You can be sanctioned for not checking but they can be sanctioned as well for providing something that was clearly wrong

Ex: I was fired because I was discriminated against
* Ok show me – did you actually get even fired, show me an email
* You have an obligation to check what you can check - Especially if easy without discovery

Answer 120

A

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 to the tribunal
* Imposes a duty of truthfulness
* Writing, oral, or witness
* Material = relevant

If you know something is false
* you must cure it or not put it in/offer it
* even if it confidential info — 3.3 trumps 1.6

Must disclose adverse authority
* You can distinguish it
* Saying revealing the info “would hurt my case” doesn’t matter

Offering evidence => If you know something is false
* you must cure it or not put it in/offer it
* even if it confidential info — 3.3 trumps 1.6

Offering evidence => If you really believe it is false, but don’t know forsure and if it is a civil matter
* you can choose to introduce it or not cure it

If you have a criminal defendant and you reasonably believe they are lying → you still must let them testify
* You do not have the same discretion in crim with D’s matters
* Your client
* You can only stop them if you KNOW

Comments
* A lawyer’s knowledge that is evidence is false, however, can be inferred from the circumstances
* (a)(3) requires that the lawyer refuse to offer evidence that the lawyer KNOWS to be false, regardless of the client’s wishes

Out carousing with mikey
* So the point of this particular exercise is to just appreciate that there’s a certain line you cross where you just cannot say it is reasonable belief anymore

Differences in answering questions
* He did not say everything but he answered the question – very politician like = not a lie = true and complete on its face

Answer 121

A

Can’t obstruct another lawyers access to evidence
* or destroy, conceal, falsify evidence

Don’t do frivolous discovery requests
* Don’t allude to issues not relevant in trial or will not be supported by the admissible evidence

impartiality & decorum of the tribunal
* Can’t seek to influence a judge
* Communicate ex parte with judge or jury unless allowed

Answer 122

A

In the course of representing a client a lawyer shall not knowingly:
* make a false statement of material fact or law to a third person; or
* fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Rule 8.4 – It is professional misconduct for a lawyer to engage in conduct involving dishonesty, deceit, fraud or misrepresentation.
* Applies in private capacity vs. 4.1 applies in the course of representing a client
* A fraudulent statement is one in which the speaker makes a knowing misrepresentation of a material (relevant and affects the outcome) fact on which the recipient reasonably relies to his detriment.

Answer 123

A

Valuation is an opinion. You can always get an appraiser.
Vague statements are usually ok (i.e. “will last a lifetime.)
Saying you have another buyer is okay or saying you will walk away
Can lie about bottom lines (except to a judge)
Death of the plaintiff is material

“In the course of repping a client”
* Not for yourself, it is when you are reppin client
* 8.4 applies anywhere anytime

Material?
* A statement is material for the purposes of 4.1 if it would or could have influenced the decision making process significantly

4.1 applies to third parties not tribunals
* 3.3 is tribunals

Binding arbitration v. nonbinding and mediation
* Binding - 3.3
* Nonbinding - 4.1; mediation and negotiation as well

Answer 124

A

Active misrepresentation is actionable if material and the listener reasonably relied upon it.
* No damages requirement
* While civil fraud has damages
* The fact you knowingly lied about something material is enough to breach 4.1

Misrep can occur by partially true misleading statements or omissions that are equivalent of an affirmative misstatement
* So by leaving something out like this, like here, leaving it out, but making the inference that the clients left because of the contract breach, highly likely that it would fall under the provision and therefore be a misstatement
* partial truths that are intended to mislead and under the circumstances do mislead are going to be violations assuming material and intentional

Answer 125

A

Making specific claims about other offers is risky because some courts have found these tantamount fraud
* However, general claims about other potential offers have typically been found unactionable
* General claims are looked as puffery and is typically not actionable

Example – Commercial lease
* The landlord told the potential tenant that they had another buyer who was going to pay X amount of dollars for that particular space and they’re coming back tomorrow at a certain time. And if they didn’t sign the lease, then they would lose the space.
* Too specific!

The tenant signed a lease for that amount, but then later learned that that was just a lie.
* No such tenant and overpaid
* Sued and went to trial

Answer 126

A

Active misreps about bottom line are generally permitted to non-judges (a third party)
* The least I will take for settling for example
* The most I will pay as defendant

Caveat
* You cannot lie to the judge

Active misrepresentation about bottom line
* May present bargaining positions that do not reveal bottom line
* May overestimate strengths and underestimate weaknesses
* May express opinion of value or worth

Answer 127

A

So, rule to prevent a fraud, R 4.1, requires disclosure because in such circumstances, R1.6 allows it
* SO if they have used your services, and you provided false banking accounts for a loan, and you believe that it is reasonably likely to lead to substantial financial injury to the bank, 4.1 REQUIRES you to let them know
* So 4.1 plus 1.6 REQUIRES you to tell when 1.6 only is a may

Answer 128

A

No. Non-disclosure is usually permitted, except where “when standards of fair dealing require disclosure”
* Also when there is fraud or criminal

Factors of fair dealing
* The ease with which the other party could have discovered the undisclosed fact on their own
* The extent to which the omission is akin to scrivener’s error, as opposed to poor lawyering
* Investment that party made in discovering the undisclosed fact
* Disclosure of facts central to the agreement or settlement

Answer 129

A

Are not permitted in
* Domestic relations matters like divorce
* Criminal matters

Shall be in writing and describe the method
* Let them know percentages
* The agreement must clearly notify the client of any expenses for which the client will be liable whether or not the client is the prevailing party.
* Hourly just needs to be communicated before or reasonable time

Answer 130

A

Most lawyers bill in minimum increments, often a tenth of an hour (6 mins)
* So if you make a phone call for two minutes, you can bill for six minutes. That is ethical to do, it is in the contract.

Doesn’t have to be in writing (differs from Contingency fees), but should be

Answer 131

A

A lawyer shall not make an agreement for, charge, or collect an UNREASONABLE fee or unreasonable amount for expenses

Hourly billing
* Must a hourly fee disclosure be in writing?
* Does the lawyer have to disclose fee and expense information before starting work?
* Does the lawyer have to estimate the amount of time they will spend on the case in advance?
* you dont, BUT YOU SHOULD

Answer 132

A

Time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
* Is this a cookie cutter kind of case that i done thousands of, or a completely new area where no one has done it before and paving the way for future lawyers

Likelihood, if apparent to the client, that acceptance of the particular employment will preclude other employment by the lawyer
* Big criminal trials take up so much time!

The fee customarily charged in the locality for similar legal services
* SF lawyers v. Kansas city lawyers

The amount involved and the results obtained
* Being mindful that things that are going to cost a certain amount and what is going to be the payoff
* Hey its going to be expensive, give client an awareness

The time limitations imposed by the client or by the circumstances
* meaning that you can have a premium on your billing if you basically have to do things very quickly as opposed to having a normal time.

The nature and length of the professional relationship with the client
* The courts are going to be more lenient in terms of challenging a fee if you have a longer relationship with the client rather than the short.

The experience, rep, and ability of the lawyer or lawyers performing the services; and
* lawyers who are of greater stature in terms of reputation, greater length of time of service are going to charged more.

Whether the fee is fixed or contingent

fee customarily charged in the locality for similar legal services
* this might be the most important factor

Answer 133

A

Do not double bill
* airplane example

Do not bill recycled work
* Unethical

Do not churn the file, meaning creating work with little benefit except that it creates costs for the client
* doing work on the file that really isn’t needed, but yet has some sort of a billable, uh, consequences.

Do not make up bills or pad bills
* unethical

Do keep contemporaneous track of your billable hours

Do provide client with details of how you spent your time

Communication of fee
* Does not require writing, but should
* It must be before or a reasonable amount of time once you start that you communicate the arrangement
* Any changes must be communicated as well

If you are just renewing services for an existing client, it does not necessarily apply

Answer 134

A

(e) A division of a fee between lawyers who are not in the same firm may be made only if:
* (1) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation;
* (2) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and
* (3) the total fee is reasonable.

Answer 135

A

a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter;
a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client; and
a lawyer representing an indigent client pro bono, a lawyer representing an indigent client pro bono through a nonprofit legal services or public interest organization and a lawyer representing an indigent client pro bono through a law school clinical or pro bono program may provide modest gifts to the client for food, rent, transportation, medicine and other basic living expenses.

So if you’re a regular practicing lawyer, not involved in a public service organization or a clinic, you cannot provide these gifts to clients.

Answer 136

A

A lawyer shall not accept compensation for representing a client from one other than the client unless:
* (1) the client gives informed consent;
* (2) there is no interference with the lawyer’s independence of professional judgment or with the client-lawyer relationship; and
* (3) information relating to representation of a client is protected as required by Rule 1.6.

Answer 137

A

A lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless:
* 1) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client; and
* (2) the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent legal counsel on the transaction; and
* (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer’s role in the transaction, including whether theclawyer is representing the client in the transaction.

How does this come up?
* You make a business deal with the client. And the client comes to believe that the business deal is unfair.

This does not apply to contracts for your own legal servies
* However, the rule applies to contracts for legal services if the client is transferring property to the lawyer as part of payment of services.
* So if you are paid by transferring of their car

The rule does not apply to contracts for services or products that the client normally sells.
* You can go to the restaurant of your client
* You client may be your doctor.
* You client may be your insurance salesperson.

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Professional Responsibility Flashcards

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