Professional Responsibility Flashcards
What is an Attorney’s Duty of Competence?
Lawyer must be reasonably competent at performing the task.
If the lawyer is not experienced in the particular field of representation, he must decline representation or be able to learn the relevant law without undue delay or expense to the client, or can affiliate with an experienced practitioner.
What is an Attorney’s Duty of Confidentiality?
A lawyer must maintain the confidence of information that he reasonably believes his client does not intend for the public to know.
What is the Requirement of Informed Consent?
Lawyer must give clients or adversely affected individuals informed consent, conveyed in writing, concerning certain actions.
What is an Attorney’s Duty not to Prosecute without Probable Cause?
Prosecutors have an affirmative duty not to pursue criminal charges they have reason to believe are not supported by probable cause (CA and ABA)
What is a Prosecutor’s Duty to not make Prejudicial Statements to Media?
May make statements that are not prejudicial to trial, may make statements to address improper statements by opposing party. Must not make comments that have substantial likelihood of heightening public condemnation of the accused.
Prosecutors have a duty to take reasonable steps to ensure that other government officers do not make similar statements.
What is an Attorney’s Duty of Candor?
An attorney has a duty to be fully truthful before a court.
What is an Attorney and Judge’s Duty to not engage in Ex Parte Communications?
Attorney should notify and attempt to include an opposing party before making ex parte communications with a judge or the court.
A judge should make efforts to not engage in ex parte contact.
What Are the Requirements of Contingency Fee Agreements?
ABA and CA:
1) In writing;
2) Signed by client;
3) Describing duties of lawyer and client;
4) Stating percentage fee to be taken by lawyer; and
5) whether such fees are calculated before or after legal / court fees.
In CA lawyers are also required to state that percentage is negotiable and to indicate how legal fees that are not covered by the contingency arrangement will be paid.
CA: cannot be unconscionable; ABA: cannot be unreasonable.
What is an Attorney’s Duty of Candor to the Public?
Ads and Solicitations
A lawyer cannot engage in real-time phone or live contact with a prospective client with whom he has no pre-existing relationship.
CA presumes that contact at the scene of a crime, tort, or under circumstances that a lawyer should know would leave a client in an unstable condition is improper.
CA has said that solicitation in chat rooms is ok, while the ABA has said that is not ok.
What is an Attorney’s Duty of Fairness to Opposing Counsel?
A lawyer must refrain from altering or obstructing access to legally discoverable evidence.
What are the limits on Attorney Referral Fees?
Referral fees are disallowed at ABA, but are allowed in CA if the referral arrangement is non-exclusive and the client provides informed consent confirmed in writing of his knowledge of the referral arrangement.
At ABA and CA Referral arrangements must not be exclusive.
When May Lawyers Engage in Fee Splitting?
Prohibited with non-lawyers.
ABA: May split amongst lawyers if fee split is in proportion to services rendered or if both lawyers remain jointly liable, the total fee is reasonable and the fee is not increased, and the client gives informed consent.
In CA: the fee must not be unconscionable and the client must give informed consent.
When May an Attorney Reveal the Potential Fraud of a Client?
CA: breach of duty of confidentiality
ABA: must reveal if client is using lawyer’s services to further a crime and the disclosure may mitigate substantial financial loss.
What Are the Limitations on Representation in the Event of a Conflict of Interest?
A lawyer must reasonably believe there is no adverse effect on representation and must disclose the conflict to the client in writing.
CA: does not require client consent but extends to potential conflicts; ABA require ICCIW but extends only to actual conflicts.
What are the Conflict Rules Governing an Attorney’s Prior Employment in Government?
ABA: former government attorneys must obtain the consent of their previous employer before working on the same matter for a private firm.
CA: none of the above, but a prosecutor cannot resign and then serve as defense counsel.
What are the Conflict Rules Governing an Attorney’s Attempt to Limit Malpractice Liability?
CA: Prohibited
ABA: Allowed if client receives independent counsel. May only settle a malpractice claim after informing client to get independent counsel’s opinion.
What are the Conflict Rules Governing an Attorney’s Receipt of Publication Rights to a Client Matter?
CA: Allowed if judge thinks client clearly understands and consents.
ABA: Cannot accept before representation has ended.
What are the Conflict Rules Governing an Attorney’s Extension of Loans to Clients?
CA: Cannot promise to pay client’s debts but can enter any other loan agreement with a client.
ABA: may advance litigation expenses for indigent client or for legal costs in contingency cases.
What are the Conflict Rules Governing an Attorney’s Business Transactions with Clients?
CA: terms are fair to client; disclosed and in understandable writing; client has opportunity to consult outside attorney and client provides written consent outside of document.
ABA: same as above, but written consent not required, only general consent.
When May Trial Counsel Serve as a Witness?
CA: Attorney can testify in any bench trial, and may testify before a jury if the client consents.
ABA: Attorney may testify if:
1) testimony is uncontested;
2) testimony regards nature and value of services rendered;
3) or attorney’s distinctive value to the case means withdrawal would impose a substantial hardship on the client.
If testimony might prejudice the client, consent is required.
What are the Conflict Rules Governing an Attorney’s Close Relationship with an Adversary’s Lawyer?
CA: Must disclose existence of an intimate or family relationship with an attorney representing opposing party in writing.
ABA: cannot oppose a party represented by a family member without the client’s consent.
What are the Conflict Rules Governing an Attorney’s Receipt of Payment from Third Parties?
CA: Permitted if 1) informed written consent of client and third party, 2) third party will not interfere, and 3) confidentiality will not be affected.
ABA: same, except written consent not absolutely required.
What is an Attorney’s Duty to Organizational Clients?
CA: Prohibits reporting outside of company for non-preempted legal violations. Lawyers may report for federal securities law or SOX or similar violations.
ABA: must report legal violations up the chain of command. May report violations to SEC or other authority if lawyer reasonably believes that disclosure is necessary to prevent fraud, perjury or substantial harm to organization or org’s investors.
What are the Requirements for General Fee Agreements?
CA: must be in unless under $1,000, 2) a corporate client, 3) routine services of a regular client, 4) emergency or impractical to get writing. Writing must include the requirements of ABA, below.
ABA: oral agreements allowed, but must include how the fee is calculated, what services are covered, and the lawyers and clients duties.
What Are the Limits on Billing Multiple Clients for Same Time?
CA: permitted if
1) fee to each client is not unconscionably high;
2) attorney clearly discloses billing practices at outset of relationship;
3) client consents.
How Long Must Attorneys Maintain Client Records?
CA: must keep records for five years after distribution.
ABA: generally must keep accurate records of client files.
What are the Requirements for Malpractice Liability Insurance?
CA: not required, but must disclose lack of insurance in writing if representation requires more than 4 hours of work. Exceptions for government and in-house attorneys.
ABA: not required to disclose or purchase.
What is Required for an Attorney’s Permissive Withdrawal?
CA: 1) Good cause and 2) withdrawal will not cause delay or disruption. Also allowed to withdraw if client breaches fee agreement.
ABA: same but may withdraw if representation will result in unreasonable financial burden.
When Are Lawyers Allowed to Have Relationships with Clients?
CA: permitted but must not impair lawyer’s judgment or ethical duties.
ABA: allowed if relationship pre-exists client arrangement.
What are the Limitations in Attorney Advertising?
All ads (in CA?) must be labeled as attorney advertising and state the name and location of the attorney making the ad.
CA: ad is presumed improper if it guarantees a result
ABA: must not make material misstatements or omissions.
What Steps Must An Attorney Take to Prevent Client Perjury?
CA:
1) counsel client to testify truthfully or to not testify;
2) try to withdraw from the case;
3) allow client to testify in narrative fashion.
ABA:
1) counsel client to testify truthfully or to not testify;
2) try to withdraw from the case;
3) then tell judge and let her handle it.
What is an Attorney’s Duty to Report Misconduct?
CA: does not require reporting, but may discipline an attorney if they did nothing to prevent or counsel against unethical conduct.
ABA: must report ethical violations that raise a substantial question as to the attorney’s honesty or fitness as a lawyer.
What is an Attorney’s Duty to Expedite Cases?
CA: Attorneys must not delay cases to harass adversary, or for their own personal gain or convenience.
ABA: affirmative duty to expedite cases to their conclusion.
What Are the Limits on Attorneys Soliciting or Drafting Gifts for Themselves?
CA: Cannot solicit gifts, but may draft transferring documents.
ABA: cannot solicit gifts or draft a document that transfers a gift to the attorney or his family member, unless the donor is also a family member.
What is an Attorney’s Duty in Opposing a Present a Client in Simultaneous Proceedings?
CA: Absolutely prohibited.
ABA: consent of parties opposed to each other is rarely reasonable but not absolutely prohibited.
What is an Attorney’s Duty When Dealing with the Press?
Must avoid making out of court statements that attorney knows has a likelihood of prejudicing the case.
Exceptions are:
1) Matters in the public record;
2) warning the public and informing them of an ongoing investigation or asking for help; and
3) statements required to protect your client from prejudice.
Taking Payment from One Party to Represent Another
Client (one not paying) must give informed consent; lawyer must be sure payment won’t create conflicts of interest.
What is Protected By the Attorney Client Privilege?
Attorney is required to not disclose information that was communicated:
1) in confidence;
2) in furtherance of the representation; and
3) made to an attorney or a professional hired to assist the attorney in interpreting the facts.
What is an Attorney’s Duty to not use Information from Past Clients to their Disadvantage?
Using information obtained in confidence violates the duty of loyalty.
