Professional Responsibility Flashcards
PROFESSIONAL RESPONSIBILITY
- Duty of Loyalty
PROFESSIONAL RESPONSIBILITY
1. Duty of Loyalty
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- Lawyer-client relationship is fiduciary
- Lawyer owes client duty of loyalty:
- Put client interests first
- Avoid conflicts of interest
- Ensure independent judgment
- No self-dealing
- Disclosure
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The attorney-client relationship is a fiduciary relationship, and the lawyer owes the client a duty of loyalty. This means the lawyer must act with undivided loyalty to the client, placing the client’s interests above the lawyer’s own interests and avoiding any situation where the lawyer’s personal interests or duties to others could compromise their representation of the client.
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The attorney-client relationship is a fiduciary relationship of the highest trust and confidence. As a fiduciary, a lawyer owes their client a duty of undivided loyalty. This duty is a cornerstone of the legal profession and is reflected in both the ABA Model Rules and the California Rules of Professional Conduct.
Core Principles of the Duty of Loyalty:
- Client’s Interests First: The lawyer must place the client’s interests above the lawyer’s own interests and above the interests of any other person.
- Avoiding Conflicts of Interest: The lawyer must avoid any situation where their representation of the client would be compromised by conflicting interests (governed by specific rules on conflicts).
- Independent Professional Judgment: The lawyer must exercise independent professional judgment on behalf of the client, free from any undue influence.
- No Self-Dealing: The lawyer must not engage in self-dealing or take unfair advantage of the client.
- Full Disclosure: The lawyer must fully disclose any potential conflicts or other information that could affect the client’s interests.
Examples of Breaches of Loyalty:
- Representing clients with conflicting interests without proper consent.
- Using confidential client information for the lawyer’s own benefit.
- Entering into a business transaction with a client on unfair terms.
- Accepting gifts from a client that are disproportionate or suggest undue influence.
Policy: The duty of loyalty is essential to maintain public confidence in the legal profession and to ensure that clients receive zealous and effective representation.
PROFESSIONAL RESPONSIBILITY
- Conflict of Interest: Duty of Loyalty
PROFESSIONAL RESPONSIBILITY
1. Conflict of Interest: Duty of Loyalty
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- Cannot represent a client if there is:
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Direct Adversity
- representing one client who is directly adverse to another client
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Significant Risk of Material Limitation
- representation is likely to be limited by responsibilities owed to someone else
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Direct Adversity
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Exceptions:
- Informed written consent
- CA: + disclosure + imputed on firm
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Forbidden regardless of consent:
- Against the law
- Clients directly adverse in same litigation
- Disinterested lawyer would think you shouldn’t
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- The duty of loyalty, a fundamental aspect of the attorney-client relationship, requires a lawyer to avoid conflicts of interest.
- ABA and CA prohibit concurrent client conflicts, which arise when:
- the representation of one client is directly adverse to another current 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, a third person, or the lawyer’s own interests.
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- The duty of loyalty, a cornerstone of the attorney-client relationship, requires a lawyer to act solely in the client’s best interests and to avoid any conflicts of interest.
- Both the ABA the CA prohibit concurrent client conflicts, reflecting this fundamental duty.
Prohibited Conflicts:
- Direct Adversity: Representing a client in a matter directly adverse to another current client is prohibited, even if the matters are unrelated. This is a per se conflict.
- Significant Risk of Material Limitation: A lawyer must not represent a client if there is a significant risk that the representation will be materially limited by responsibilities to another client, a former client, a third person, or the lawyer’s own interests. This requires assessing the likelihood and severity of any impairment of the lawyer’s independent judgment.
Informed Written Consent (Exception): Some conflicts can be waived with the informed written consent of each affected client. However, consent is not effective if:
- The representation is prohibited by law.
- It involves asserting a claim by one client against another client represented by the lawyer in the same litigation.
- A disinterested lawyer would conclude that the client should not agree to the representation.
CA Specifics:
- “Informed Written Consent”: CA requires a written disclosure of the relevant circumstances and the actual and reasonably foreseeable adverse consequences, followed by written consent.
- Disclosure of Relationships: CA requires the disclosure of relationships
Imputed Conflicts: A conflict of one lawyer in a firm is generally imputed to all other lawyers in the firm.
Examples:
- Representing both the plaintiff and defendant in the same lawsuit
- direct adversity, non-consentable
- Representing two clients in unrelated matters when their interests might diverge in the future
- significant risk of material limitation, potentially consentable
- Representing a client against a former client in a substantially related matter
- former client conflict, see separate rule
Policy: These rules protect client loyalty, confidentiality, and the integrity of the legal system.
PROFESSIONAL RESPONSIBILITY
- Duty of Competence
PROFESSIONAL RESPONSIBILITY
2. Duty of Competence
- A lawyer owes a duty of competence to their client.
- Competence requires as reasonably necessary for representation
- legal knowledge,
- skill,
- thoroughness, and
- preparation
- A lawyer lacking competence must
- decline representation,
- acquire the necessary competence, or
- associate with competent counsel.
- In an emergency, a lawyer may
- give advice in an area of law where they lack the required competence
- if other consultation is impractical.
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Both the ABA and CA impose a duty of competence on lawyers. A lawyer must provide competent representation to a client, meaning the lawyer must possess and apply:
- Legal Knowledge & Skill: The knowledge of the law and the practical skills needed for the specific representation.
- Thoroughness & Preparation: Adequate investigation of the facts, research of the relevant law, and preparation for all stages of the representation.
Acquiring Competence: A lawyer can accept representation in a matter where they are not initially competent, if they can acquire the necessary competence through reasonable study and preparation without undue delay or expense to the client, or by associating with a lawyer who is competent in the area.
Emergency Situations: In an emergency, a lawyer may give advice or assistance in a matter in which the lawyer does not have the skill ordinarily required if referral to or consultation with another lawyer would be impractical. However, the assistance should be limited to what is reasonably necessary in the circumstances.
Maintaining Competence: Lawyers have a continuing duty to stay informed of changes and developments in the law relevant to their practice.
Supervision: Lawyers with supervisory authority have a duty to ensure that subordinate lawyers and non-lawyer staff act competently.
Consequences: Failing to act competently can result in discipline.
PROFESSIONAL RESPONSIBILITY
- Duty of Confidentiality
PROFESSIONAL RESPONSIBILITY
3. Duty of Confidentiality
- A lawyer owes a duty of confidentiality to their client.
- ABA: a lawyer shall not reveal information relating to the representation of a client.
- CA: requires an attorney to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.
- This duty is broader than the attorney-client privilege.
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- The duty of confidentiality is a cornerstone of the attorney-client relationship.
- It is broader than the attorney-client privilege.
- Both the ABA and CA impose a strict duty of confidentiality
- CA’s rule is even more protective of client information.
ABA: Prohibits a lawyer from revealing “information relating to the representation of a client” unless:
- The client gives informed consent.
- The disclosure is impliedly authorized to carry out the representation.
- A specific exception applies:
- prevent reasonably certain death or substantial bodily harm,
- prevent certain crimes or frauds involving the lawyer’s services,
- secure legal advice,
- establish a claim or defense,
- comply with law or court order.
CA: Requires an attorney “to maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.”
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Secrets: This term is interpreted broadly to include
- any information gained in the professional relationship
- that the client has requested be kept secret,
- or the disclosure of which would be embarrassing or detrimental to the client.
- This is broader than the ABA’s “information relating to the representation.”
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Narrower Exceptions: CA’s only exception to this strict duty is a permissive one:
- a lawyer may (but is not required to)
- reveal confidential information
- to the extent the lawyer reasonably believes necessary
- to prevent a criminal act likely to result in death or substantial bodily harm.
- a lawyer may (but is not required to)
- CA does not have exceptions for financial crimes, securing legal advice, or other exceptions found in the ABA.
Distinction from Attorney-Client Privilege: The duty of confidentiality is broader than the attorney-client privilege.
- The privilege protects only communications between lawyer and client made in confidence for the purpose of seeking legal advice.
- The duty of confidentiality protects all information relating to the representation, regardless of its source.
Policy: The duty of confidentiality encourages full and frank communication between clients and their attorneys, essential for effective representation.
PROFESSIONAL RESPONSIBILITY
- Conflicts of Interest: Current Clients
PROFESSIONAL RESPONSIBILITY
4. Conflicts of Interest: Current Clients
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- A lawyer must avoid conflicts of interest with current clients.
- Both the ABA and CA prohibit two main types of current client conflicts:
- Direct Adversity: Representing a client in a matter that is directly adverse to another current client, even if the matters are unrelated.
- Significant Risk of Material Limitation: Representing a client when there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another current client, a former client, a third person, or the lawyer’s own personal interests.
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- A lawyer’s duty of loyalty to their clients requires them to avoid conflicts of interest.
- Both the ABA and CA address concurrent client conflicts.
Prohibited Conflicts:
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Direct Adversity: Representing a client in a matter directly adverse to another current client is prohibited, even if the matters are completely unrelated.
- This is a per se conflict, reflecting the fundamental principle that a lawyer cannot be on both sides of the same issue.
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Significant Risk of Material Limitation: A lawyer must not represent a client if there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or the lawyer’s own interests.
- This requires assessing the likelihood and severity of any potential impairment of the lawyer’s independent professional judgment.
Exception – Informed Written Consent:
- Some conflicts can be waived with the informed written consent of each affected client.
- However, not all conflicts are consentable.
Forbidden Conflicts:
- Prohibited by Law: The representation is prohibited by law.
- Adverse Parties in Same Litigation: The representation involves the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
- Disinterested Lawyer Wouldn’t: A disinterested lawyer would conclude that the client should not agree to the representation under the circumstances.
CA Specifics:
- Informed Written Consent Definition: CA requires a written disclosure of the relevant circumstances and the actual and reasonably foreseeable adverse consequences to the client, followed by the client’s written consent.
- Disclosure of Relationships: CA requires written disclosure of relationships, even without a significant risk of material limitation.
Imputed Conflicts:
- A conflict of interest of one lawyer in a firm is generally imputed to all other lawyers in the firm.
- This means that if one lawyer in a firm cannot represent a client due to a conflict, no other lawyer in the firm can either (unless screening and other ethical wall procedures are properly implemented, where permitted).
Policy: These rules are designed to protect client loyalty, confidentiality, and the integrity of the legal system.
PROFESSIONAL RESPONSIBILITY
- Duty of Candor to the Court
PROFESSIONAL RESPONSIBILITY
5. Duty of Candor to the Court
- A lawyer owes a duty of candor to the tribunal.
- This duty includes:
- not knowingly making false statements of fact or law;
- correcting any false statements of material fact or law previously made;
- not offering evidence the lawyer knows to be false; and
- disclosing to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
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- The duty of candor to the tribunal is a fundamental ethical obligation that reflects the lawyer’s role as an officer of the court.
Key Obligations:
- No False Statements: A lawyer shall not knowingly make a false statement of fact or law to a tribunal, or fail to correct a material false statement previously made by the lawyer.
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No False Evidence: A lawyer shall not offer evidence the lawyer knows to be false.
- If a lawyer, client, or witness offers material evidence the lawyer later learns is false, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal.
- Disclose Adverse Authority: A lawyer must disclose legal authority in the controlling jurisdiction that is directly adverse to the client’s position and not disclosed by opposing counsel. This applies to legal authority, not facts.
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Client Perjury (Criminal Cases):
- ABA: If a lawyer knows their criminal defendant client intends to commit perjury, the lawyer must: (1) attempt to dissuade the client; (2) if unsuccessful, seek to withdraw; and (3) if withdrawal is not permitted or will not undo the effect of the false testimony, disclose the perjury to the tribunal.
- CA: California follows a modified “narrative approach.” If a lawyer knows their criminal defendant client intends to commit perjury, the lawyer must: (1) attempt to dissuade the client; (2) if unsuccessful, seek to withdraw; and (3) if withdrawal is not permitted, allow the client to testify in a narrative fashion, but the lawyer cannot elicit the perjured testimony through questioning, and cannot argue the false testimony to the jury. The lawyer may not reveal the perjury.
“Knowing” Standard: The duty of candor generally applies to what the lawyer knows. “Knows” denotes actual knowledge, but knowledge can be inferred from circumstances.
Policy: The duty of candor is essential to the integrity of the judicial process. It ensures that courts make decisions based on truthful information and accurate legal arguments.
PROFESSIONAL RESPONSIBILITY
- Duty of Communication
PROFESSIONAL RESPONSIBILITY
6. Duty of Communication
- A lawyer must:
- keep the client reasonably informed about the status of the matter;
- promptly comply with reasonable requests for information; and
- explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
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- The duty of communication is a crucial aspect of the attorney-client relationship, ensuring that clients are able to make informed decisions about their representation.
Specific Requirements:
- Promptly Inform: Lawyers must promptly inform clients of any decision or circumstance requiring the client’s informed consent.
- Reasonable Consultation: Lawyers must reasonably consult with clients about the means to accomplish the client’s objectives.
- Keep Reasonably Informed: Lawyers must keep clients reasonably informed about the status of their matter, including significant developments.
- Prompt Compliance with Requests: Lawyers must promptly comply with reasonable requests for information and, in CA, copies of significant documents when necessary.
- Explanation for Informed Decisions: Lawyers must explain matters to the extent reasonably necessary to permit the client to make informed decisions about the representation. This includes explaining the applicable law, the available options, and the potential risks and benefits of each option.
CA: Communication of Offers
- Written Settlement Offers: California explicitly requires lawyers to promptly communicate all amounts, terms, and conditions of any written settlement offer in civil cases.
- Plea Bargains: California requires prompt communication of all terms and conditions of any plea bargain offer in criminal cases.
- Significant Documents: California emphasizes providing copies of significant documents when necessary.
Policy: The duty of communication promotes client autonomy, fosters trust, and allows clients to meaningfully participate in their own representation. It is closely related to the duty of competence and the duty to act with reasonable diligence.
Consequences of Breach: Failure to adequately communicate with a client can result in disciplinary action, a claim for legal malpractice, and may provide grounds for setting aside a settlement or plea agreement.
PROFESSIONAL RESPONSIBILITY
- Duty of Diligence
PROFESSIONAL RESPONSIBILITY
6. Duty of Diligence
- A lawyer has a duty to act with reasonable diligence and promptness in representing a client.
- This means the lawyer must pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience, and must act with commitment and dedication to the client’s interests.
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- A lawyer must act with reasonable diligence and promptness in representing a client.
Key Aspects of the Duty:
- Zealous Advocacy (Within Bounds of Law): A lawyer must act with commitment and dedication to the client’s interests and zealously advocate for the client’s position. But a lawyer is not bound to press for every advantage.
- Reasonable Promptness: A lawyer must act with reasonable speed and timeliness, avoiding unnecessary delays.
- Control of Workload: A lawyer must manage their workload to ensure they can handle each matter diligently and competently.
- No Neglect or Procrastination: Unreasonable delay, neglect of client matters, and procrastination are clear violations of the duty of diligence.
Examples of Violations:
- Missing filing deadlines.
- Failing to respond to discovery requests.
- Failing to prepare adequately for hearings or trials.
- Failing to take necessary steps to advance the client’s case.
- Failing to return client’s calls.
“Reasonable” Standard: The duty of diligence does not require perfection or constant activity. It requires reasonable effort and promptness under the circumstances.
Relationship to Other Duties: The duty of diligence is closely connected to the duty of competence and the duty of communication.
Consequences of Breach: A violation of the duty of diligence can result in disciplinary action, a claim for legal malpractice, and may prejudice the client’s legal rights.
PROFESSIONAL RESPONSIBILITY
- Mandatory Withdrawal
PROFESSIONAL RESPONSIBILITY
- Mandatory Withdrawal
Under both the ABA Model Rules (1.16(a)) and the California Rules of Professional Conduct (1.16(a)), a lawyer is required to withdraw from representing a client in the following circumstances:
- Violation of Rules or Law: The representation will result in a violation of the Rules of Professional Conduct or other law.
- Impaired Physical or Mental Condition: The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client.
- Discharge: The lawyer is discharged by the client.
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The ABA Model Rules (1.16(a)) and the California Rules of Professional Conduct (1.16(a)) delineate the circumstances under which a lawyer’s withdrawal from representation is mandatory. A lawyer must withdraw if:
- Violation of Rules or Law: The representation will result in a violation of the Rules of Professional Conduct or other law. This often arises when the client insists on pursuing an illegal or unethical course of conduct, or when a non-waivable conflict of interest develops. The lawyer must know that the continued representation will result in a violation.
- Impaired Ability: The lawyer’s physical or mental condition materially impairs their ability to provide competent representation. This requires a significant impairment, not merely a minor illness or stress.
- Discharge: The client discharges the lawyer. The client’s right to terminate the attorney-client relationship is absolute.
Court Permission: In matters pending before a tribunal, the lawyer must seek the court’s permission to withdraw, even if withdrawal is otherwise mandatory (ABA Model Rule 1.16(c), Cal. RPC 1.16(c)). The court may deny permission if withdrawal would significantly disrupt the proceedings or prejudice the administration of justice. The lawyer has to comply with any laws for providing notice.
Protecting Client’s Interests: Upon any termination of representation, the lawyer has a duty to take reasonable steps to mitigate the consequences to the client, including giving reasonable notice, allowing time to employ new counsel, returning client papers and property, and refunding unearned fees (ABA Model Rule 1.16(d), Cal. RPC 1.16(e)).
Contrast with Permissive Withdrawal: It’s important to distinguish mandatory withdrawal from permissive withdrawal (ABA Model Rule 1.16(b), Cal. RPC 1.16(b)), where a lawyer may withdraw under certain circumstances, even if not required to do so (e.g., if the client insists on pursuing a repugnant or imprudent objective, or if the representation will result in an unreasonable financial burden on the lawyer).
PROFESSIONAL RESPONSIBILITY
- Filing Frivolous Claims or Contentions
PROFESSIONAL RESPONSIBILITY
- Filing Frivolous Claims or Contentions
Under both the ABA Model Rules (3.1) and the California Rules of Professional Conduct (3.1), a lawyer must not bring or defend a proceeding, or assert or controvert an issue, unless there is a non-frivolous basis in law and fact for doing so. A claim or contention is frivolous if it is without merit and lacks any reasonable legal or factual support.
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Both the ABA Model Rules (3.1) and the California Rules of Professional Conduct (3.1) prohibit a lawyer from bringing frivolous claims, defenses, or contentions. In addition, California Business and Professions Code section 6068(c) requires an attorney to counsel or maintain such actions, proceedings, or defenses only as appear to him or her to be legal or just.
Definition of “Frivolous”: A claim, defense, or contention is frivolous if:
- It is completely without merit in law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law.
- It is unsupported by any credible evidence.
- It is brought primarily for an improper purpose, such as to harass or maliciously injure another person.
Good Faith Argument for Change in Law: A lawyer is permitted to make a good faith argument for a change in existing law, even if the position is not currently supported by precedent. This requires a reasoned and principled argument, not merely a frivolous assertion.
Criminal Defense Exception: In a criminal case, a lawyer for the defendant may defend the proceeding so as to require that every element of the crime be established, even if the lawyer believes the defendant is guilty. This reflects the defendant’s constitutional right to a defense.
California Specifics:
- Business and Professions Code § 6068(c): Reinforces the duty to present only legal or just claims and defenses.
- California Code of Civil Procedure § 128.5 and §128.7: Authorize courts to impose sanctions (including attorney’s fees) for frivolous actions, bad faith tactics, and signing pleadings without a reasonable basis.
Consequences of Frivolous Conduct: Violations can lead to disciplinary action, court sanctions, and potential civil liability.
Policy: These rules are designed to protect the integrity of the judicial system, prevent abuse of the legal process, and deter the filing of meritless claims and defenses.
PROFESSIONAL RESPONSIBILITY
- Amount of Lawyer’s Fees
PROFESSIONAL RESPONSIBILITY
- Amount of Lawyer’s Fees
Both the ABA Model Rules (1.5) and the California Rules of Professional Conduct (1.5) require that a lawyer’s fee be reasonable and not unconscionable. Factors considered in determining reasonableness include: (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required; (2) the likelihood that acceptance of the employment will preclude other employment; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) time limitations imposed by the client or circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer; and (8) whether the fee is fixed or contingent.
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Both the ABA Model Rules (1.5) and the California Rules of Professional Conduct (1.5), along with California Business and Professions Code sections 6146-6148, govern the amount and structure of lawyer’s fees.
Reasonableness and Unconscionability:
- ABA Model Rule 1.5 and California Rule 1.5: Require that a lawyer’s fee be reasonable.
Reasonableness Factors (ABA and CA): Factors considered in determining reasonableness include:
- Time and labor required, novelty and difficulty of the questions, skill required.
- Likelihood of precluding other employment.
- Fee customarily charged in the locality.
- Amount involved and results obtained.
- Time limitations.
- Nature and length of the professional relationship.
- Experience, reputation, and ability of the lawyer.
- Whether the fee is fixed or contingent.
- California Rule 1.5: Prohibits both unreasonable and unconscionable fees. California’s “unconscionability” standard is more protective of clients. A fee is unconscionable if it is so disproportionate to the value of the services as to shock the conscience.
Written Fee Agreements (California):
- Contingency Fees (§ 6147): Must be in writing, signed by both parties, and contain specific disclosures (fee percentage, expense handling, negotiability).
- Non-Contingency Fees (Over $1,000) (§ 6148): Must be in writing if reasonably foreseeable that total expenses (including fees) will exceed $1,000, with specific disclosures (rates, nature of services, responsibilities). An exception exists if, among other things, the client is a corporation
Fee Splitting:
- Between Lawyers in Same Firm: Permitted.
- Between Lawyers in Different Firms: Permitted under both ABA and California rules, if the client consents in writing after full disclosure, the total fee is not increased solely by reason of the fee split, and (under the ABA rules) the division is in proportion to the services performed by each lawyer or each lawyer assumes joint responsibility.
Prohibited Fees:
- Certain Criminal and Domestic Relations Matters: Contingent fees are generally prohibited in criminal cases and in domestic relations matters where the fee is contingent upon securing a divorce or upon the amount of alimony or support.
- Unearned Fees: A lawyer cannot charge for work not yet performed (except for a true retainer fee, which is earned solely by the lawyer being available).
Policy: These rules protect clients from excessive or unfair fees, promote transparency in fee arrangements, and uphold the integrity of the legal profession.
PROFESSIONAL RESPONSIBILITY
- Conflicts of Interest: Former Clients
PROFESSIONAL RESPONSIBILITY
- Conflicts of Interest: Former Clients
Under both the ABA Model Rules (1.9) and the California Rules of Professional Conduct (1.9), a lawyer cannot represent a new client against a former client in the same or a substantially related matter if the new client’s interests are materially adverse to the former client’s interests, unless the former client gives informed written consent. Matters are ‘substantially related’ if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the new client’s position.
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The duty of loyalty and confidentiality to former clients is protected by rules governing former client conflicts of interest. Both the ABA Model Rules (1.9) and the California Rules of Professional Conduct (1.9) address these conflicts.
Prohibited Representations:
- Same or Substantially Related Matter: 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 written consent.
- Use of Confidential Information: A lawyer shall not use information relating to the representation of a former client to the disadvantage of the former client, except as permitted by the rules relating to confidentiality or when the information has become generally known.
“Substantially Related” Test: Matters are “substantially related” if:
- They involve the same transaction or legal dispute; or
- There is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the new client’s position. This focuses on the risk of misuse of confidential information.
Informed Written Consent: The former client can consent to the representation, but the consent must be informed and in writing (with specific requirements in California, including disclosure of the relevant circumstances and the actual and reasonably foreseeable adverse consequences).
Imputation: The conflict of one lawyer is generally imputed to the entire firm (ABA Model Rule 1.10, Cal. RPC 1.10), although screening may be permitted in some jurisdictions.
Policy: These rules protect the former client’s confidential information and ensure loyalty, even after the formal attorney-client relationship has ended.
California
Informed Written Consent.
PROFESSIONAL RESPONSIBILITY
- Contingency Fee Agreements
PROFESSIONAL RESPONSIBILITY
- Contingency Fee Agreements
Under ABA Model Rule 1.5 and California Business and Professions Code section 6147, contingency fee agreements must be in writing, signed by both the client and the lawyer, and must state the method by which the fee is to be determined, including the percentage accruing to the lawyer in the event of settlement, trial, or appeal, and how expenses will be handled.
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Contingency fee agreements, where a lawyer’s fee is dependent on obtaining a favorable outcome for the client, are a common and accepted practice in many areas of law, particularly in personal injury cases. However, they are subject to strict regulation to protect clients.
ABA Model Rule 1.5:
- Writing: Requires a contingency fee agreement to be in writing, signed by the client.
- Fee Calculation: Requires the agreement to state the method by which the fee is determined, including the percentage(s) accruing to the lawyer in the event of settlement, trial, or appeal, and how litigation expenses will be handled.
- Reasonableness: The fee must be reasonable.
California Business and Professions Code section 6147: Imposes additional requirements for contingency fee agreements in California:
- Writing: The agreement must be in writing.
- Signatures: Signed by both the attorney and the client.
- Fee Calculation: Must state the contingency fee rate (percentage).
- Expense Deduction: Must state how disbursements and costs will affect the contingency fee and the client’s recovery.
- Negotiability Statement: Must include a statement that the fee is not set by law but is negotiable between attorney and client.
- Duplicate Copy: The client must be provided with a fully executed duplicate copy.
Prohibited Contingency Fees:
- Criminal Cases: Generally prohibited, except in limited circumstances (e.g., post-conviction relief).
- Domestic Relations Matters: Generally prohibited if the fee is contingent upon securing a divorce or upon the amount of alimony, support, or property settlement.
Related Duties:
- Duty of Communication (Rule 1.4): The lawyer must clearly explain the terms of the contingency fee agreement to the client.
- Duty of Competence (Rule 1.1): The lawyer must be competent to handle the matter.
Policy: Contingency fees provide access to justice for clients who might not otherwise be able to afford legal representation. The strict requirements for written agreements and disclosures are designed to protect clients from misunderstandings and overreaching by attorneys.
PROFESSIONAL RESPONSIBILITY
- Formation of Lawyer-Client Relationship
PROFESSIONAL RESPONSIBILITY
- Formation of Lawyer-Client Relationship
A lawyer-client relationship can be formed expressly, through a written or oral agreement, or impliedly, based on the conduct of the parties. An implied relationship arises when: (1) a person seeks legal advice or assistance from a lawyer; (2) the advice or assistance sought is within the lawyer’s professional competence; (3) the lawyer, either expressly or impliedly, agrees to render or gives the advice or assistance; and (4) it is reasonable for the prospective client to believe that an attorney-client relationship has been established.
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The formation of a lawyer-client relationship is generally governed by principles of contract and agency law, but it is also shaped by the ethical obligations of lawyers. A relationship is formed when:
- A person manifests to a lawyer the person’s intent that the lawyer provide legal services for the person; and
- Either:
(a) the lawyer manifests to the person consent to do so; or
(b) the lawyer fails to manifest lack of consent to do so, and the lawyer knows or reasonably should know that the person reasonably relies on the lawyer to provide the services.
Express vs. Implied Formation:
- Express: The relationship can be formed expressly through a written retainer agreement or an oral agreement to provide services.
- Implied: The relationship can also be formed impliedly, based on the conduct of the parties. Factors considered include:
- The client’s reasonable belief that a relationship exists.
- The lawyer’s words and actions (or failure to act).
- The nature of the services sought and provided.
- Prior dealings between the parties.
Rejection of Representation: A lawyer is generally not obligated to accept any particular client. If a lawyer does not intend to form a lawyer-client relationship, they should clearly and promptly communicate that to the prospective client to avoid any reasonable reliance.
Duties to Prospective Clients: Even if no formal lawyer-client relationship is formed, a lawyer who has had discussions with a prospective client owes that person a duty of confidentiality regarding information learned during the consultation (ABA Model Rule 1.18, Cal. RPC 1.18).
Policy: The rules governing formation are designed to protect the reasonable expectations of individuals seeking legal assistance and to ensure that lawyers are clear about their obligations.
PROFESSIONAL RESPONSIBILITY
- Permissive Withdrawal
PROFESSIONAL RESPONSIBILITY
- Permissive Withdrawal
Under both the ABA Model Rules (1.16(b)) and the California Rules of Professional Conduct (1.16(b)), a lawyer may withdraw from representation if withdrawal can be accomplished without material adverse effect on the client’s interests, or if:
- The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
- The client has used the lawyer’s services to perpetrate a crime or fraud.
- The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
- The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., failure to pay fees) and has been given reasonable warning.
- The representation will result in an unreasonable financial burden on the lawyer.
- Other good cause for withdrawal exists.
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ABA Model Rule 1.16(b) and California Rule of Professional Conduct 1.16(b) govern permissive withdrawal, allowing a lawyer to withdraw from representation even when withdrawal is not mandatory.
Grounds for Permissive Withdrawal:
- No Material Adverse Effect: A lawyer may withdraw if it can be accomplished without material adverse effect on the client’s interests. This is the broadest ground.
- Specific Grounds: A lawyer may also withdraw, even if there would be a material adverse effect, if any of the following grounds exist:
- Client’s Criminal/Fraudulent Conduct: The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent.
- Past Crime/Fraud: The client has used the lawyer’s services to perpetrate a crime or fraud.
- Repugnant/Fundamental Disagreement: The client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement.
- Failure to Fulfill Obligation: The client fails substantially to fulfill an obligation to the lawyer (e.g., payment of fees) and has been given reasonable warning that the lawyer will withdraw.
- Unreasonable Financial Burden: The representation will result in an unreasonable financial burden on the lawyer.
- Unreasonably Difficult: The client makes the client unreasonably difficult.
- Other Good Cause: Other good cause for withdrawal exists. This is a catch-all provision.
Court Permission: If the matter is before a tribunal, the lawyer must seek the court’s permission to withdraw, even if permissive withdrawal is otherwise justified (ABA Model Rule 1.16(c), Cal. RPC 1.16(c)).
Protecting Client’s Interests: Upon termination, the lawyer must take reasonable steps to protect the client’s interests (ABA Model Rule 1.16(d), Cal. RPC 1.16(e)):
- Reasonable notice to the client.
- Allowing time for employment of other counsel.
- Surrendering client papers and property.
- Refunding unearned fees.
“Reasonable Belief” Standard: For the “criminal or fraudulent conduct” ground, the lawyer need only have a reasonable belief, not actual knowledge.
California: The rules in California are very similar, the only key difference being the phrasing for client’s criminal or fraudulent conduct.
PROFESSIONAL RESPONSIBILITY
- Proper Scope of Lawyer-Client Relationship
PROFESSIONAL RESPONSIBILITY
- Proper Scope of Lawyer-Client Relationship
Under ABA Model Rule 1.2 and California Rule of Professional Conduct 1.2, the client and lawyer have distinct roles in defining the scope of representation. The client generally determines the objectives of the representation (e.g., whether to settle a case, whether to plead guilty). The lawyer, after consultation with the client, generally determines the means to achieve those objectives (e.g., legal strategy, which motions to file). However, the scope of representation must be reasonable, and a lawyer cannot assist a client in conduct the lawyer knows is criminal or fraudulent.
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ABA Model Rule 1.2 and California Rule of Professional Conduct 1.2 define the proper scope of the lawyer-client relationship and allocate decision-making authority.
Allocation of Authority:
- Client’s Objectives: The client has the ultimate authority to determine the objectives of the representation. This includes fundamental decisions like settling a civil case, entering a plea in a criminal case, waiving a jury trial, and deciding whether to testify.
- Lawyer’s Means: After consultation with the client, the lawyer generally has authority to determine the means to achieve the client’s objectives – the legal strategy, tactics, and procedural steps.
Limitations on Scope:
- Reasonableness: The scope of representation must be reasonable under the circumstances. A lawyer cannot agree to provide representation so limited in scope as to violate the duty of competence.
- Criminal/Fraudulent Conduct: A lawyer cannot counsel or assist a client in conduct the lawyer knows is criminal or fraudulent (ABA Model Rule 1.2(d), Cal RPC 1.2.1).
- Informed Consent: A lawyer may limit the scope of representation if the limitation is reasonable and the client gives informed consent. California requires this consent to be in writing (Cal. RPC 1.2).
Related Duties:
- Duty of Communication (Rule 1.4): The lawyer has a duty to keep the client reasonably informed and to explain matters sufficiently to allow the client to make informed decisions.
- Clients with Diminished Capacity (Rule 1.14): When a client’s capacity to make adequately considered decisions is diminished, the lawyer must, as far as reasonably possible, maintain a normal client-lawyer relationship.
Policy: These rules are designed to protect client autonomy while also recognizing the lawyer’s professional expertise and ethical obligations.
PROFESSIONAL RESPONSIBILITY
- Witness Perjury
PROFESSIONAL RESPONSIBILITY
- Witness Perjury
Under ABA Model Rule 3.3 (Candor Toward the Tribunal), a lawyer must not knowingly offer false evidence. If a lawyer learns a witness has offered material false testimony, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal. If a criminal defendant client insists on testifying falsely, the lawyer must try to dissuade the client, seek to withdraw if permitted, and, if withdrawal is not possible, may have to disclose the perjury to the court.
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A lawyer’s duty of candor to the tribunal (ABA Model Rule 3.3, Cal. RPC 3.3, and California Business and Professions Code section 6068(d)) is paramount and prohibits a lawyer from knowingly offering false evidence.
General Rule:
- A lawyer shall not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal.
- A lawyer shall not offer evidence that the lawyer knows to be false.
- If a lawyer, client, or witness offers material evidence that the lawyer later comes to know was false, the lawyer must take reasonable remedial measures, including, if necessary, disclosure to the tribunal (except in the case of a California criminal defendant’s perjury).
“Knowing” Standard: The duty applies to what the lawyer knows. “Knows” denotes actual knowledge, but knowledge can be inferred from circumstances. A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact (except in the case of a California criminal defendant – see below).
Witness Perjury (Non-Client): If a witness (other than the criminal defendant client) offers testimony the lawyer knows is false, the lawyer must take reasonable remedial measures.
Client Perjury (Criminal Defendant): This creates a significant ethical dilemma, balancing the duty of candor with the client’s constitutional rights. The rules differ:
- ABA Model Rule 3.3: The lawyer must: (1) try to dissuade the client; (2) seek to withdraw; and (3) if withdrawal is not possible, disclose the perjury to the tribunal.
- California: California uses a modified “narrative approach.” The lawyer must: (1) try to dissuade the client; (2) seek to withdraw; and (3) if withdrawal is not possible, allow the client to testify in a narrative fashion without questioning that elicits the perjury, and the lawyer must not argue the false testimony. The lawyer does not disclose the perjury to the court (due to California’s stricter confidentiality rules).
Policy: These rules are designed to protect the integrity of the judicial process, while also recognizing the special constitutional rights of criminal defendants.
PROFESSIONAL RESPONSIBILITY
- Sharing Legal Fees with Non-Lawyers
PROFESSIONAL RESPONSIBILITY
- Sharing Legal Fees with Non-Lawyers
Both the ABA Model Rules (5.4) and the California Rules of Professional Conduct (5.4) generally prohibit a lawyer from sharing legal fees with a non-lawyer. This rule is designed to protect the lawyer’s professional independence of judgment. There are limited exceptions, such as payments to a law firm’s profit-sharing or retirement plan, or payments to the estate of a deceased lawyer for work performed before death.
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Both the ABA Model Rules (5.4) and the California Rules of Professional Conduct (5.4) strictly limit a lawyer’s ability to share legal fees with non-lawyers. This prohibition is designed to protect the lawyer’s professional independence of judgment and to prevent the unauthorized practice of law.
General Rule: A lawyer or law firm shall not share legal fees with a non-lawyer.
Exceptions:
- Profit-Sharing/Retirement Plans: A lawyer may include non-lawyer employees in a compensation or retirement plan, even if the plan is based on a profit-sharing arrangement. This allows law firms to provide benefits to their staff.
- Estate of Deceased Lawyer: A lawyer may pay to the estate of a deceased lawyer (or to specified beneficiaries) the amount that represents the deceased lawyer’s share of fees for work performed before their death. This allows for an orderly winding up of the deceased lawyer’s practice.
- Sale of Law Practice: Under specific rules governing the sale of a law practice (see separate rule), a lawyer may sell their practice, including goodwill, to another lawyer or law firm, and the purchase price may be based on future fees.
- Court-Awarded Fees- A lawyer may share with a non-profit.
agreement.
Related Prohibitions (Protecting Professional Independence):
- Partnerships with Non-Lawyers: A lawyer shall not form a partnership with a non-lawyer if any of the partnership’s activities consist of the practice of law.
- Non-Lawyer Control: A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment.
- Non-Lawyer Ownership: A non-lawyer generally cannot own an interest in a law firm.
Policy: These rules are fundamental to maintaining the integrity and independence of the legal profession. They prevent non-lawyers from interfering with a lawyer’s professional judgment, from engaging in the unauthorized practice of law, and from benefiting financially from legal services they are not qualified to provide.
PROFESSIONAL RESPONSIBILITY
- Solicitation of Clients
PROFESSIONAL RESPONSIBILITY
- Solicitation of Clients
Both the ABA Model Rules (7.3) and the California Rules of Professional Conduct (7.3) regulate a lawyer’s solicitation of clients. Solicitation is generally defined as a communication initiated by or on behalf of a lawyer that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that offers to provide legal services. The rules generally prohibit solicitation motivated by pecuniary gain, with exceptions for contact with other lawyers and those with close relationships to the lawyer.
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Both the ABA Model Rules (7.3) and the California Rules of Professional Conduct (7.3), along with California Business and Professions Code sections 6151-6154, regulate a lawyer’s solicitation of clients. Solicitation is generally defined as a communication initiated by or on behalf of a lawyer that is directed to a specific person known or who should be known to need legal services in a particular matter, and that offers to provide legal services for pecuniary gain.
Key Restrictions:
- In-Person, Live Telephone, Real-Time Electronic Contact (ABA): The ABA Model Rules generally prohibit this type of solicitation when motivated by pecuniary gain, with exceptions for contact with other lawyers and those with close relationships.
- California’s Broader Prohibition: California has stricter rules, prohibiting solicitation by any means if the lawyer knows or should know the person is not in a fit state to exercise reasonable judgment, has made known a desire not to be solicited, or the solicitation involves coercion, duress, or harassment.
Written/Recorded Communications: Both the ABA and California rules place restrictions on written, recorded, or electronic communications (that are not live and real-time):
- “Advertising Material”: Such communications must generally be clearly labeled as “advertising material” (with specific requirements in California).
- Targeted Mailings: Restrictions may apply to targeted mailings to individuals known to need specific legal services (e.g., after an accident).
Runners and Cappers (California): California Business and Professions Code sections 6151-6154 specifically prohibit the use of “runners” or “cappers” – individuals who solicit business for attorneys, often at accident scenes or hospitals. This is a crime in California.
Policy: These rules are designed to protect vulnerable individuals from undue influence, overreaching, and the potential for lawyers to stir up litigation for their own financial gain. They balance the lawyer’s right to communicate with the public’s right to be free from intrusive or harassing solicitations.
PROFESSIONAL RESPONSIBILITY
- Duty to Safeguard Property
PROFESSIONAL RESPONSIBILITY
- Duty to Safeguard Property
Under both the ABA Model Rules (1.15) and the California Rules of Professional Conduct (1.15), a lawyer must safeguard client property. Funds belonging to clients or third parties must be kept in a separate client trust account, distinct from the lawyer’s own funds. The lawyer must maintain complete records of such funds and other property and promptly deliver to the client or third person any funds or other property that they are entitled to receive.
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Both the ABA Model Rules (1.15) and the California Rules of Professional Conduct (1.15), along with California Business and Professions Code sections 6091 and 6210 et seq., impose a strict duty on lawyers to safeguard client and third-party property.
Key Obligations:
- Segregation of Funds:
- All funds belonging to clients or third persons must be kept in a separate client trust account, distinct from the lawyer’s own funds. This account is typically an IOLTA account in California.
- Commingling (mixing client funds with the lawyer’s own funds) is strictly prohibited, except for a small amount of the lawyer’s funds to cover bank charges.
- Misappropriation (using client funds for the lawyer’s own purposes) is a serious ethical violation and a crime.
- Record-Keeping:
- Lawyers must maintain complete and accurate records of all client funds and other property.
- California has very specific record-keeping requirements, including maintaining a client ledger, a journal of receipts and disbursements, and retaining bank statements and cancelled checks. These records must be kept for five years after the final distribution of the funds.
- Notification, Delivery, and Accounting:
- Lawyers must promptly notify clients or third parties upon receiving funds or property in which they have an interest.
- Lawyers must promptly deliver any funds or property that the client or third party is entitled to receive.
- Lawyers must provide a full accounting of client funds and property upon request.
- Disputed Funds:
- If there is a dispute over ownership of funds or property, the lawyer must keep the disputed portion separate until the dispute is resolved. The lawyer cannot unilaterally decide who is entitled to the funds.
Types of Property Covered: The duty to safeguard applies not only to money, but also to other property, such as securities, documents, jewelry, or any other item of value held by the lawyer in connection with the representation.
IOLTA (Interest on Lawyer Trust Accounts): California, like most states, has an IOLTA program. Lawyers must deposit nominal or short-term client funds into an IOLTA account, where the interest is used to fund legal services for the indigent. Larger or longer-term funds may need to be placed in separate, interest-bearing accounts for the benefit of the client.
Policy: These rules protect client and third-party funds from misuse, ensure proper accounting, and maintain public confidence in the legal profession.
Consequences of Violation: Failure to properly safeguard client property can result in disciplinary action (including suspension or disbarment), civil liability (for conversion or breach of fiduciary duty), and even criminal prosecution (for theft or embezzlement).
