Professional Responsibility

Question 1

Formation of Client Relationship

Answer 1

A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client. A lawyer-client relationship is formed when a prospective client seeks legal services from a lawyer and the lawyer either agrees to provide services or fails to clearly decline services.

Question 2

Prospective Clients

Answer 2

A person who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter is a prospective client, and entitled to the same rules for confidentiality as any other client.

Question 3

Organization as the Client

Answer 3

A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents. A lawyer with an organization as a client is not representing the individual members of the organization, and could potentially violate the duty of confidentiality. (Look for the lawyer retained by a company, and during representation, the Chief Operations Officer tries to use the attorney for his own purposes).

Question 4

Duty of Competence

Answer 4

A lawyer shall provide competent representation to a client, which requires the legal knowledge, skill, thoroughness, and preparation necessary for the representation. A lawyer can make himself competent by associating with a lawyer of established competence, or reasonable preparation.

Question 5

Responsibilities of a subordinate Lawyer

Answer 5

A lawyer is bound by the Rules of Professional conduct notwithstanding that the lawyer acted at the direction of another person. A subordinate lawyer does not violate the Rules of Professional Conduct if that lawyer acts in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.

Question 6

Allocation of Authority

Answer 6

ABA and CA - A lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued. The client is responsible for determining their goals for representation, and the lawyer controls the legal strategy and tactical means of achieving those objectives. (The client must be told of all settlement offers, and only they can decide to accept or deny).

Question 7

Duty of Diligence

Answer 7

A lawyer shall, act with reasonable diligence and promptness in representing a client. In CA·, a lawyer cannot intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing their client.

Question 8

Duty of Communication

Answer 8

A lawyer must keep the client reasonably informed about any significant developments relating to the representation. A lawyer must promptly inform the client of any decision requiring informed consent, consult regarding objectives, and promptly comply with reasonable information requests . A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

Question 9

Reasonable Fee

Answer 9

A lawyer shall not make an arrangement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. In CA the fee may not be unconscionable (so exorbitant as to shock the conscience] or illegal. The factors to be considered in determining the reasonableness of a fee include time, difficulty of the case, expertise of the lawyer, degree of specialty required, preclusion of other work, amount of fee, the relationship with the client, and the results obtained.

Question 10

Fee Agreements

Answer 10

Written fee agreements are advisable under the ABA rules, and mandatory in CA unless the fee is $1K or less, the work is routine, the client is. a corporation, or client waives the requirement for a writing.

Question 11

Fee Sharing Between Lawyers

Answer 11

Fees can be shared between lawyers not in the same firm if the division is in proportion to the service provided, the client consents in writing and the total fee is reasonable. In CA, in addition; 1) the fees cannot be increased because of the division; and 2) the fees aren’t unconscionable.

Question 12

Contingency Fee Agreements

Answer 12

These agreements state the lawyer’s fees will be paid out of any recovery the client receives. The agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case. In CA, the writing must include how expenses not covered in the agreement will be charged, and that fees are not set by law and negotiable.

Question 13

Accepting Payment from Third Parties

Answer 13

A lawyer shall not accept compensation for representing a client from one other than the client unless the client gives informed consent, there is no interference with the lawyer’s independence and information relating to the representation of a client is protected.

Question 14

Financial and Similar Arrangements with Non - Lawyers

Answer 14

A lawyer or law firm shall not share legal fees directly or indirectly with a non-lawyer or with organization that is not authorized to practice law, with limited exceptions.(This doesn’t include licensed companies that market the services of licensed attorneys).

Question 15

Partnerships with Non-Lawyers

Answer 15

A lawyer shall not forma partnership or other organization with a nonlawyer in any of the activities of the partnership or other organization consist of the practice of law.

Question 16

Duty of Confidentiality

Answer 16

A lawyer shall not reveal information relating the representation of a client unless the client gives informed consent, or the disclosure is impliedly authorized in order to carry out the representation. Under ABA – a lawyer may disclose` confidential information when the client consents, when ordered by law, to defend in a malpractice suit, to prevent reasonably certain death or substantial bodily harm, to prevent the client from committing reasonably certain substantial crime or fraud, to secure legal advice for litigation between the lawyer and client, or to comply with court orders.

Question 17

Duty of Financial Integrity

Answer 17

A lawyer owes a duty of financial integrity to their client to bill appropriately and not to co-mingle funds.

Question 18

Potential Conflicts of Interest

Answer 18

Occurs when the lawyer suspects a conflict however representation is not materially limited. ABA Model Rules do not require informed written consent; however, CA rules do.

Question 19

Conflict of Interest - Current Clients

Answer 19

A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if the representation is directly adverse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties, unless: a) the lawyer reasonably believes he can provide competent representation; b) not prohibited by law; c) two party opponents are not represented by the same lawyer; and d) each client gives informed consent in writing. In CA, both disclosure and consent must be in writing.

Question 20

Conflict of Interest - Former Clients

Answer 20

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 when the person’s interests are materially adverse to the interests of the former client unless a former client gives informed consent.

Question 21

Conflict of Interest - Firms

Answer 21

While lawyers are associated in a firm, none of them shall knowingly represent a client when any one o them practicing alone would be prohibited from doing so.

Question 22

Business Transactions with Client

Answer 22

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: 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, the client is advised to consult with outside counsel and is given reasonable opportunity to do so, and the client consents in writing.

Question 23

Gifts

Answer 23

A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrument giving the lawyer or a person related to the lawyer any substantial gift, unless the lawyer is related to the client.

Question 24

Duty of Loyalty

Answer 24

A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts. If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel. The model rules encourage advisement in writing, that the client be advised of the conflict, and waive their rights related to the conflict. In CA, writing is required when an attorney represents clients with actual or potential conflicts.

Question 25

Permissive Withdrawal

Answer 25

Under ABA rules, a lawyer may seek to withdraw if it can be done without materially harming the client. If it will harm the client, a lawyer may only withdraw if: 1) the client persists in crime or fraud; 2) lawyer learns previous services were used to perpetuate crime; 3) the client insists upon taking action lawyer finds repugnant; 4) client fails to pay; 5) representation will lead to a financial burden on the lawyer; 6) client has made representation unreasonably difficult; and 7) other good cause.

Question 26

Mandatory Withdrawal

Answer 26

A lawyer shall inquire into and assess the facts and circumstances of each representation to determine whether the lawyer may accept or continue the representation. A lawyer shall not represent a client or, when representation has commenced, shall withdraw from the representation of a client if: 1) the representation will result in violation of the Rules of Professional Conduct or other law; 2) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; 3) the lawyer is discharged; or 4) 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.

Question 27

Withdrawal in CA

Answer 27

Required if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. The lawyer must return unspent legal fees, notify the client and return their materials. and cannot hold materials pending payment. ABA and CA rules require the lawyer obtain court approval if they seek withdrawal after the action was filed. (Changing lawyers, or "subbing out" is often denied if it will harm the client).

Question 28

Termination of Representation

Answer 28

Upon termination of representation, a lawyer shall take steps to the extent reasonably practical to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred.

Question 29

Duty of Candor Toward the Tribunal

Answer 29

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 by the lawyer, or fail to disclose to the tribunal legal authority known to be adverse or offer evidence known to be false. In CA, a lawyer is required to employ only means consistent with the truth, and never seek to mislead any judicial officer with false statements.

Question 30

Duty of Fairness to Opposing Party and Counsel

Answer 30

A lawyer shall not unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.

Question 31

Communication With Represented Parties

Answer 31

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.

Question 32

Duty of Client Candor Remedial Measures

Answer 32

If a lawyer knows of false testimony of a client during a deposition, the lawyer must take reasonable measures to remonstrate the client confidentially, advise the client of the lawyer's duty of candor and seek the client's assistance to correct.

Question 33

Lying Clients

Answer 33

A lawyer who represents a client in an adjudicative proceeding and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. In CA, during criminal trials, the lawyer may allow the client to testify in the narrative without disclosing perjury.

Question 34

Malpractice Insurance

Answer 34

A lawyer may not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless the client is independently represented in making the agreement. In CA, a lawyer may not limit their malpractice liability.

Question 35

Referrals

Answer 35

ABA _ a lawyer may not give anything of value to a person for recommending the lawyer's services, but they may engage in mutual referral of clients. In CA, referral fees can be paid if the client consents in writing, the fee does not increase cost to client and is not unconscionable.

Question 36

Reporting Professional Misconduct

Answer 36

A lawyer who knows that another lawyer/judge has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional authority. In CA, a lawyer is required to report fraud, misappropriation of funds and other criminal acts or conduct that raise "a substantial question" about another lawyer's "honesty, trustworthiness, or fitness; as a lawyer”. Also, a lawyer must self-report if 1) charged with a felony; 2) convicted of a serious crime; 3) found guilty of a crime committed in a professional capacity; 4) disciplined; 5) sanctioned for $1,000 or more; 6) sued for malpractice; or 7) a court judgment finds the lawyer grossly incompetent or willfully misrepresented a client

Question 37

Misconduct

Answer 37

It is professional misconduct for a lawyer to: 1) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; 2) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; 3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 4) engage in conduct that is prejudicial to the administration of justice; 5) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; 6) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or 7) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.

Question 38

Third Party Payments

Answer 38

Allowing a third party to pay for legal fees is permissible, as long as such an agreement prohibits the third party from controlling the course of the representation. The third party has no privilege to be apprised of the case or of any confidential communication. Here, the client must give informed consent. In CA, this consent must be in writing.

Question 39

Advance of Expenses

Answer 39

Under both ABA and CA rules a lawyer may advance litigation expenses. The agreement must be in writing and must state that the advance is a loan requiring repayment. In CA, a lawyer is permitted to loan the client funds, but must have a written agreement and the loan cannot be used to entice the client to engage the lawyer's services.

Question 40

Loans and Payment of Personal or Business Expenses

Answer 40

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except when advancing court costs and expenses of litigation when repayment is contingent on the outcome, and when the lawyer is representing an indigent client, where they may pay court costs and expenses of litigation on behalf of the client.

Question 41

Solicitation

Answer 41

A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer's doing so is the lawyer's or law firm's pecuniary gain, unless the contact is with a lawyer, friend, family, or if they routinely use such services. (Comments, "I know your brother, let me handle your case," or "call my sister" are considered inappropriate).

Question 42

Assisting Non-Lawyers in the Unauthorized Practice of Law

Answer 42

A lawyer who assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the ethics rules. In CA, a lawyer must not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is a disbarred attorney to engage in the practice of law, but can hire them to perform paralegal duties

Question 43

Trial Publicity

Answer 43

A lawyer who is participating or has participated in the Investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing the matter. Exceptions - statements to limit adverse publicity, when limited to the claim, defense or identification of person; when in a public record, warning of danger or information necessary for apprehension.

Question 44

Inadvertent Receipt of Documents

Answer 44

A lawyer who receives a document or electronically stored information relating to the representation of the lawyer's client and knows or reasonably should know that the document or electronically stored information was inadvertently sent promptly notify the sender.

Question 45

Sexual Relations

Answer 45

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

Question 46

Ex Parte Communications with the Judge/Officials in Capacity

Answer 46

A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, except for logistics and emergency information

Question 47

Conduct Involving Deceit, Dishonesty, Fraud or Misrepresentation

Answer 47

Under ABA rules, it is professional misconduct for a lawyer to engage in any of these activities.

Question 48

Threats

Answer 48

In CA, a Lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. (Note Rule 3-10 is not available during criminal cases).

Question 49

Special Responsibilities of a Prosecutor

Answer 49

The prosecutor in a criminal case shall: 1) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; 2) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; 3) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing; 4) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal.