Professional Responsibility Flashcards
Formation of Lawyer-Client Relationship
A lawyer-client relationship is formed when:
- a person seeks legal services from a lawyer; AND EITHER
- the lawyer manifests consent to provide services, OR
- the lawyer fails to manifest lack of consent and knows or should know that the person would reasonably rely on the lawyer to provide legal services.
In CA, the reasonable perception of a purported client may determine that such person is deemed a client of the lawyer.
What is the proper scope of a lawyer-client relationship? When may that scope be limited?
The general scope of a lawyer-client relationship is that the client controls the objectives of the representation, while the lawyer controls the means to accomplish those objectives. The lawyer must consult with the client as to the means.
A lawyer may limit the scope of representation if:
- it’s reasonable under the circumstances; AND
- the client gives informed consent.
Can a lawyer advise or assist a client in violating the law?
A lawyer CANNOT counsel or assist a client in engaging in conduct that the lawyer knows is:
- criminal;
- fraudulent; OR
- a violation of any law, rule, or ruling of a tribunal.
In CA, a lawyer is permitted to advise and assist a client with complying with California laws even if such laws conflict with federal or tribal law.
What is a lawyer’s duty of competence?
A lawyer owes his client the duty of competence, which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client.
In CA, a lawyer HAS A DUTY TO keep abreast of changes in the law and its practice.
Duty of Communication
A lawyer must keep the client reasonably informed about any significant developments relating to the representation. This includes promptly informing the client of situations requiring informed consent and consulting with the client about strategy decisions.
Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end.
Duty of Confidentiality
A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. This duty is broader than the attorney-client privilege.
In CA, a lawyer MAY disclose confidential information of a client under certain conditions.
Inadvertent Disclosure of Confidential Information
A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of confidential information. If a lawyer inadvertently receives a document, they must promptly notify the sender.
Duty to Safeguard Property
A lawyer MUST hold the property of a client or third-person separate from the lawyer’s own property. All client funds MUST be kept in a separate attorney trust account.
Conflict of Interest: Duty of Loyalty
A lawyer owes his client the fiduciary duty of loyalty, which means that he must act in the client’s best interest and avoid conflicts. A lawyer CANNOT engage in self-dealing.
Conflict of Interest: Current Clients
A concurrent conflict of interest exists if: (a) the representation is directly adverse to another client; OR (b) there is a significant risk that the lawyer’s representation will be materially limited.
Conflict of Interest: Former Clients
A lawyer CANNOT represent another person in the same or a substantially related matter when the person’s interests are materially adverse to the interests of a former client unless informed consent is given.
Conflict of Interest: Prospective Clients
A lawyer CANNOT disclose confidential information received from a prospective client. A lawyer CANNOT represent a client with materially adverse interests to a prospective client in the same or a substantially related matter.
Conflict of Interest: Imputed Conflicts
Generally, a conflict of interest is imputed to the entire law firm, and the entire firm is disqualified from the representation unless certain conditions are met.
Conflict of Interest: Former Lawyer for Government
Former government lawyers who worked personally and substantially on a matter CANNOT work on that same matter at a private firm unless the government agency consents in writing.
Business Ownership by a Lawyer
A lawyer may own and operate a business separate from the practice of law, but must avoid conflicts of interest with clients.
Business Transactions with a Client
A business transaction between a lawyer and current client is only permitted if: (1) all terms are fair and reasonable; (2) fully disclosed in writing; (3) the client is advised to consult with outside counsel; AND (4) the client consents in writing.
What are the conditions for a business transaction between a lawyer and a current client?
A business transaction is permitted if: (1) all terms are fair and reasonable; (2) terms are fully disclosed in writing; (3) the client is advised to consult with outside counsel; and (4) the client consents in writing.
When does the rule on business transactions not apply?
The rule does not apply to: (a) ordinary fee arrangements (except for ownership interests in a client’s business); (b) standard commercial transactions; and (c) a charging lien for a contingency fee [CA only].
Can a lawyer acquire a proprietary interest in a client’s cause of action?
A lawyer cannot acquire a proprietary interest unless it is a lien authorized by law for fees or a contingency fee contract in a civil case.
What are the restrictions on using a client’s confidential information?
A lawyer cannot use a client’s confidential information to the client’s disadvantage unless the client gives informed consent or the use is permitted by ethical rules.
What are the rules regarding gifts from a client?
A lawyer cannot solicit substantial gifts from a client unless related to the client. A lawyer may accept gifts subject to fairness and absence of undue influence.
What is the rule regarding acquisition of a client’s literary/media rights?
Under the ABA, a lawyer cannot negotiate for literary or media rights based on information relating to the representation before the conclusion of representation.
When can a lawyer provide financial assistance to a client?
A lawyer can provide financial assistance in specific cases, such as advancing litigation costs in contingency cases or indigent clients’ expenses.
What are the conditions for a third-party paying a client’s legal fees?
A third-party may pay if the client gives informed consent, there is no interference with the lawyer’s judgment, and confidentiality is maintained.
What must a lawyer do if they serve on the board of a client’s organization?
A lawyer must serve effectively without jeopardizing ethical duties to the organization.
What is required for aggregate settlements involving multiple clients?
A lawyer must obtain informed written consent from each client before entering into an aggregate settlement or plea.
Can a lawyer limit liability to a client for malpractice?
In CA, a lawyer cannot contract to limit liability for malpractice. Under the ABA, it is permitted if the client is independently represented.
What are the rules regarding sexual relations with clients?
A lawyer cannot have sexual relations with a current client unless the relationship existed before representation.
How does a lawyer represent an organization?
A lawyer represents the organization through its authorized constituents and must act in the best interests of the organization.
What must a lawyer do when reporting violations within an organization?
A lawyer must report actions that violate the law and could cause substantial injury to the organization, but may not report if it is not in the best interest.
When must a lawyer withdraw from representing a client?
A lawyer must withdraw if discharged, if a physical or mental condition impairs representation, or if representation violates ethics rules.
What are the conditions for permissive withdrawal from representation?
A lawyer may withdraw if the client persists in criminal actions, fails to fulfill obligations, or if other good cause exists.
What is the duty of candor to the court?
A lawyer cannot engage in dishonesty or fraud, must correct false statements, and cannot offer false evidence.
What should a lawyer do if they know a witness will commit perjury?
A lawyer cannot call a witness known to commit perjury and must take remedial measures if they later learn of perjury.
What are the rules regarding ex parte communications with the court?
A lawyer cannot seek to influence the court without all parties present unless authorized by law.
What is required to avoid filing frivolous claims?
A lawyer must investigate claims and cannot file frivolous positions. Good faith arguments are not deemed frivolous.
What are the restrictions on altering discoverable evidence?
A lawyer cannot obstruct access to evidence or alter, destroy, or conceal evidence.
What constitutes improper influence by a lawyer?
A lawyer cannot seek to influence officials by unlawful means or falsify evidence.
What actions are prohibited regarding witnesses?
A lawyer CANNOT assist a witness to testify falsely or offer an unlawful inducement to a witness.
Under what conditions can a lawyer request a person to refrain from giving information?
A lawyer CANNOT request a person (other than a client) to refrain from voluntarily giving information unless: (1) the other person is a relative, employee, or other agent of the client; AND (2) the lawyer reasonably believes that silence will not adversely affect the person’s interests.
What is required of a lawyer regarding discovery requests under the ABA?
A lawyer MUST make a reasonably diligent effort to comply with legally proper discovery requests by an opposing party and CANNOT make a frivolous discovery request.
What payments are prohibited to witnesses?
A lawyer CANNOT offer an unlawful inducement to a witness or make payments contingent upon the content of the testimony or outcome of the case.
What payments can a lawyer make to a witness?
A lawyer MAY pay a witness for: (a) expenses reasonably incurred; (b) reasonable compensation for loss of time; OR (c) a reasonable fee to an expert witness.
When can a lawyer act as trial counsel if they are a necessary witness?
A lawyer CANNOT act as trial counsel when likely to be a necessary witness unless: (a) the testimony relates to an uncontested issue; (b) the testimony relates to the nature and value of legal services rendered; (c) disqualification would create substantial hardship on the client [ABA only]; OR (d) the lawyer has informed written consent of the client [CA only].
What is the rule regarding communication with a represented person?
A lawyer CANNOT speak to a person represented by counsel unless: (a) permission from the person’s lawyer is obtained; (b) authorized by law or court order; OR (c) for communications with a public official, board committee, or body [CA only].
What are the restrictions on trial publicity?
A lawyer participating in an investigation or litigation CANNOT make extrajudicial statements that will materially prejudice the case or influence jurors.
What are the special rules for prosecutors?
Prosecutors must disclose exculpatory evidence, ensure the accused is advised of their right to counsel, and remedy wrongful convictions.
What threats are prohibited in California?
In CA, a lawyer CANNOT threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.
What is the requirement for a lawyer’s fees under the ABA?
Under the ABA, a lawyer’s fee must be reasonable.
What are the writing requirements for fee agreements in California?
In CA, ALL fee agreements must be in writing unless certain exceptions apply, such as the fee being $1,000 or less.
What is a contingency fee agreement?
A contingency fee agreement states that the lawyer’s fees will be paid out of any recovery the client receives.
What must a contingency fee agreement include?
It MUST be in writing signed by the client and include the percentage of recovery, expenses deducted, and whether the percentage is taken before or after expenses.
What is a true retainer?
A true retainer is a fee paid to ensure the lawyer’s availability, but not as compensation for legal services.
What are the rules for sharing fees among lawyers?
A lawyer MAY share fees with other lawyers inside the firm, but sharing with outside lawyers requires client consent and a written agreement.
What are the restrictions on sharing legal fees with non-lawyers?
A lawyer CANNOT share legal fees with a non-lawyer, except for specific exceptions such as death benefits or payments to non-lawyer employees.
What is prohibited regarding communications about a lawyer’s services?
A lawyer CANNOT make a false or misleading communication about the lawyer or the lawyer’s services.
What are the requirements for advertising legal services?
An advertisement must not be false or misleading, identify a responsible lawyer or firm, and comply with specific requirements [CA only].
What are the rules on client solicitation?
A lawyer CANNOT solicit a person for employment when the significant motive is pecuniary gain unless certain conditions are met.
What compensation is prohibited for recommending a lawyer’s services?
A lawyer CANNOT compensate a person for recommending the lawyer’s services, but may pay for permitted advertisements or legal service plans.
What is the rule regarding professional independence of a lawyer?
A lawyer MAY enter into business deals with a non-lawyer, but a non-lawyer CANNOT be a partner or interfere with the lawyer-client relationship.
What is the rule on unauthorized practice of law?
A lawyer CANNOT practice law in a jurisdiction where not admitted and CANNOT assist in unauthorized practice.
What are the restrictions on a person who pays, employs, or recommends a lawyer?
They cannot direct or regulate the lawyer’s professional judgment or interfere with the lawyer-client relationship.
What is the unauthorized practice of law?
A lawyer cannot practice law in a state where they are not admitted and cannot assist others in unauthorized practice.
What does ‘practice of law’ mean?
It means doing things that require the professional judgment of a lawyer.
What are the restrictions for a lawyer not admitted to practice law in a state?
They cannot have an office or continuous presence in that state for the practice of law or hold out to the public that they are admitted.
What exceptions exist in California for practicing law without admission?
Exceptions include counsel pro hac vice, military counsel appearances, certified law students, and others.
What are the responsibilities regarding non-lawyer assistants?
Non-lawyers may work under the direct supervision of a licensed lawyer, who must provide appropriate instruction and supervision.
What must a lawyer do regarding non-lawyer assistants’ ethical conduct?
A lawyer must ensure their conduct is compatible with the lawyer’s obligations and is responsible for their work product.
When is a lawyer responsible for a non-lawyer’s ethical violation?
If the lawyer orders the conduct, ratifies it with knowledge, or fails to take remedial action when aware of it.
What are the rules regarding employment of disbarred or suspended lawyers in California?
A lawyer cannot employ them for activities that constitute the practice of law but may hire them for specific non-legal activities with notice.
What activities can a lawyer hire a disbarred or suspended lawyer for?
Preparatory legal work, communication for scheduling, and clerical assistance to an active lawyer.
What constitutes professional misconduct for a lawyer?
Violating ethical rules, committing a criminal act affecting fitness, engaging in dishonesty, and other specified conduct.
What is the ABA’s stance on attempts to violate ethical rules?
An attempt to violate an ethical rule is also considered misconduct.
What are the responsibilities of a subordinate lawyer?
They are bound by the Rules of Professional Conduct, but may not violate them if acting per a supervisory lawyer’s reasonable resolution.
Can a subordinate lawyer be relieved of responsibility for violations?
No, but the direction from a supervisor may be relevant in determining knowledge of the violation.
What are the reporting requirements for professional misconduct under the ABA?
A lawyer must report another lawyer or judge if they know of a violation that raises substantial questions about honesty or fitness.
What are the self-reporting requirements for lawyers in California?
A lawyer must self-report if charged with a felony, convicted of a serious crime, or found liable for fraud in a professional capacity.
