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Professional Responsibility Flashcards

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1
Q

Topics? (2)

(Conflicts of Interest)

A
  1. Lawyer-Client Relationship
  2. Duty of Loyalty
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2
Q

A conflict of interest exists if . . .

A

an interest of the attorney, another client, past client or a third party materially limits or is adverse to loyal representation

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3
Q

Topics? (17)

(Conflicts of Interest: Duty of Loyalty)

A
  1. Resolving Conflicts of Interest
  2. Past Client Conflicting with Present Client
  3. Representation of Multiple Clients
  4. Counseling Client to Act
  5. Use of Confidential Information to Client’s Disadvantage
  6. Propriety Interest in Subject Matter of the Litigation
  7. Business Transactions with Client
  8. Publication Rights Contract
  9. Expense Advances & Loans
  10. Serving in Legal Services Organization
  11. Former Government Lawyers in Private Practice
  12. 3rd Party Interference
  13. Limiting Malpractice Liability
  14. Gifts from the Client
  15. Close Relationship with Adversary Attorney
  16. Trial Counsel is Necessary Witness
  17. Consensual Sexual Relations
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4
Q

Structure?

  1. _
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(Conflicts of Interest: Duty of Loyalty: Resolving Conflicts of Interest)

A
  1. Continuing Duty
  2. ABA Model Rules - actual conflicts only
    1. Reasonably Believe
    2. Inform Each Client
    3. Client Gives Informed Written Consent
  3. CA Rules - actual and potential conflicts
    1. No Reasonable Lawyer Standard
    2. Written Disclosure or Informed Written Consent
      1. Written Disclosure by Attorney
        1. Legal, Business. Financial, Professional or Personal Relationship with Party or Witness in Same Matter, OR
        2. Knows or Reasonably Should Know
          1. Previous Legal, Business, Financial, Professional or Personal Relationship with Party or Witness in Same Matter
          2. Previous Relationship Would Substantially Affect
            Representation, OR
        3. Legal, Business, Financial, Professional or Personal Relationship with Person or Entity & Knows or Reasonably Should Know
          Would Be Substantially Affected by Resolution of the Matter, OR
        4. Legal, Business, Financial or Professional Interest in Subject
          Matter of the Representation
      2. Informed Written Consent by Client
        1. Multiple Clients & Interests Potentially Conflict, OR
        2. Multiple Clients & Interests Actually Conflict
  4. Remedies
    1. Prior to Acceptance of Representation = Refuse Representation of Client, OR
    2. Post Acceptance of Representation = Withdraw
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5
Q

ABA Rule?

CA Rule?

(Conflicts of Interest: Duty of Loyalty: Past Client Conflicting with Present Client)

A

If a reasonable lawyer could conclude that she could undertake the subsequent representation without impact on the lawyer’s ability to diligently represent the new client, and that the representation of the new client will not result in the use of any confidential information obtained in the prior engagement the lawyer may undertake the new engagement so long as both clients are informed and provide consent in writing

No Reasonable Lawyer Standard, but otherwise the same: a member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.

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6
Q

Structure?

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(Conflicts of Interest: Duty of Loyalty: Past Client Conflicting with Present Client: Imputed Disqualification)

A
  1. Former Firm
    1. Remaining Attorney Has Confidential, Material Information
    2. Matter are Substantially Related or the Same
  2. Former Government Client
    1. Ethical Wal
    2. No Sharing in Fee
    3. Government Informed
      1. Judicial Officers Other Than Attorneys
  3. Conflict Arises from a Purely Personal Relationship
    1. Ethical Wall
  4. CA Rules - CA will disqualify for this, but not subject to disciplinary action
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7
Q

General Rule?

(Conflicts of Interest: Duty of Loyalty: Representation of Multiple Clients)

A

A lawyer generally must not accept the representation of more than one client if she believes their interests to be materially adverse or that any loyalties or interest might prevent the fair and competent representation of either or both clients. An attorney may represent multiple clients with potential conflicts with the proper consent of all clients but it is almost never proper if the clients’ interests are in actual conflict.

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8
Q

Structure?

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(Conflicts of Interest: Duty of Loyalty: Representation of Multiple Clients)

A
  1. Resolving Conflicts of Interests
    1. Reasonably Believe No Adverse Effect
      1. CA Rules - CA does not have this reasonable attorney standard
    2. Duty to Disclose
    3. Informed Written Consent
      1. CA Rules Require Informed Written Consent for Both Potential &
        Actual Conflicts
  2. Opposing Parties in Same Lawsuit or Transaction Prohibited
  3. Opposing Client’s Interest
    1. ABA Rules = Not Prohibited but Rarely Reasonable
    2. CA Rules = Prohibited
      1. Exception: Policy Holder & Insurance Company as joint Client
  4. Two Client With Inconsistent Positions
  5. Criminal Cases
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9
Q

Structure?

  1. Exceptions
    1. _
      1. _
    2. _

(Conflicts of Interest: Duty of Loyalty: Propriety Interest in Subject Matter of the Litigation)

A
  1. Exceptions
    1. Lien to Secure Fees or Expenses
      1. CA Rule - does not allow such liens
    2. Contract for Reasonable Contingency Fee
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10
Q

Structure?

  1. _
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(Conflicts of Interest: Duty of Loyalty: Business Transactions with Client)

A
  1. Requirements
    1. Fair & Reasonable Terms
    2. Fully Disclosed in Understandable Writing
    3. Independent Legal Counsel
    4. Written Informed Consent
  2. Exception: Standard Commercial Transaction
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11
Q

ABA Rule?

CA Rule?

(Conflicts of Interest: Duty of Loyalty: Publication Rights Contract)

A

no contracts before the end of the representation

discourages contracts before the end of the proceedings but tolerates them if the judge is satisfied that the client clearly understands and consents

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12
Q

ABA Rule?

CA Rule?

(Conflicts of Interest: Duty of Loyalty: Expense Advances & Loans)

A

No financial assistance to a client in connection with litigation except litigation expenses when representing an indigent client (i.e., pro bono work) or the advance of litigation expenses in contingent fee cases

CA prohibits financial assistance to a client in all contexts and prohibits the promise of paying a prospective client’s debts. However, CA permits lawyers to make such loans for any matter (even non-litigation matters) after the attorney is hired, so long as the payment is actually a loan that must be repaid and not an outright gift. Additionally, the lawyer and client must enter into a written loan agreement, signed by both parties. CA also allows the advancement of litigation expenses in contingent fee cases.

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13
Q

General Rule?

Structure?

  1. _
    1. _
    2. _

(Conflicts of Interest: Duty of Loyalty: Serving in Legal Services Organization)

A

a lawyer may serve as a director, officer or member of a legal services organization, apart from the law firm in which the lawyer practices, notwithstanding that the organization serves persons having interests adverse to a client of the lawyer​

  1. Lawyer Shall Not Knowingly Participate in Decision or Action
    1. Incompatible with Duty of Loyalty, OR
    2. Material Adverse Effect
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14
Q

Stucture?

  1. _
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(Conflicts of Interest: Duty of Loyalty: Former Government Lawyers in Private Practice)

A
  1. ABA Rules
    1. Written Consent of Govt. Employer
    2. Matter
      1. Regulations Are Not Matters
  2. CA Rules: Former Prosecutor - CA specifically prohibits a former prosecutor from later working on the defense of the same case
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15
Q

Structure?

  1. _
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(Conflicts of Interest: Duty of Loyalty: 3rd Party Interference)

A
  1. Acceptance of Payment from 3rd Party - the ABA Model Rules state that a lawyer should not accept payment from a third party for services to a client, unless the third party does not influence the lawyer’s independent judgment and the client consents after full disclosure
  2. Organizational Client
    1. Reporting Up & Reporting Out
      1. ABA Model Rules: when a lawyer working for a business organization discovers misconduct that might damage the organization, the lawyer must report that misconduct up the chain of authority within the organization. The ABA also permits the attorney to report the information to appropriate persons outside the organization if the highest authority within the organization fails to take appropriate action
      2. CA Rules: reporting within to a higher internal authority is allowed - this is permissive, however, not compulsory. Reporting out is not allowed in any case; however, if the federal law requires or allows an attorney to report, federal preemption means the attorney cannot be held liable for doing so
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16
Q

Structure?

  1. _
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  3. _

(Conflicts of Interest: Duty of Loyalty: Limiting Malpractice Liability)

A
  1. ABA Rules: will allow limits on liability if the client is represented by other independent legal counsel when the agreement was made
  2. CA Rules: an attorney cannot limit malpractice liability even if the work is pro bono
  3. Written Advice to Seek Independent Counsel Required for Settlement of Malpractice Suit
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17
Q

ABA Rule?

CA Rule?

(Conflicts of Interest: Duty of Loyalty: Close Relationship with Adversary Attorney)

A

an attorney may not oppose a party represented by a relative without informed client consent

CA also recognizes a close relationship when the one lawyer is the client of the other lawyer, when two lawyers live together and when two lawyers have an intimate personal relationship

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18
Q

Rule?

(Conflicts of Interest: Duty of Loyalty: Gifts from Client)

A

an attorney shall not solicit substantial gifts from a client or draft a legal instrument (e.g. will, trust agreement or deed) for a client that will give the lawyer (or a person related to the attorney) a substantial gift unless the lawyer and client are related

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19
Q

Structure?

  1. _
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  2. _

(Conflicts of Interest: Duty of Loyalty: Trial Counsel is Necessary Witness)

A
  1. ABA Rule: an attorney should not act as an advocate in a trial where the lawyer is likely to be called as a witness
    1. Exceptions
      1. Testimony Only Relates to Uncontested Matter
      2. Testimony Regarding Nature & Value of Legal Services Provided
      3. Disqualification Would Result in Substantial Hardship to the Client
  2. CA Rule: prohibits attorneys from testifying in jury trials unless the client consents in writing, the testimony concerns an uncontested matter or the testimony relates to the nature and value of the legal services provided
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20
Q

ABA Rule?

CA Rule?

(Conflicts of Interest: Duty of Loyalty: Consensual Sexual Relations)

A

expressly forbid lawyers from engaging in consensual sex with their clients unless there was a preexisting sexual relationship

allows such relations where the lawyer and client are involved in a preexisting sexual relationship AND where the nature of the sexual relationship will not preclude the lawyer from rendering competent legal services

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21
Q

Topics? (3)

(Duty to Preserve Confidentiality of Information)

A
  1. Duty of Confidentiality
  2. Attorney-Client Privilege
  3. Work Product Doctrine
  4. Representation of Multiple Clients
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22
Q

Generally?

Structure?

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(Duty to Preserve Confidentiality of Information: Duty of Confidentiality)

A

the duty of confidentiality requires a lawyer to keep confidential all information provided to the lawyer for the purpose of rendering legal services without the consent of the client

  1. Scope of Duty
    1. Source of Information
  2. Timing of Duty
    1. Before the Attorney-Client Relationship
    2. After the Attorney-Client Relationship
  3. Exceptions
    1. Consents After Consultation
      1. CA Rule: consent must be in writing
      2. Implied Consent
    2. Preventing Crimes of Death or Substantial Bodily Harm: an attorney may reveal what is necessary to prevent the act if she reasonably believes disclosure is necessary to prevent a crime likely to result in reasonable certain death or substantial bodily harm
      1. CA Rule: must first, if reasonable under the circumstances, make a good faith effort to persuade the client not to commit the act and inform your client of your decision to reveal her confidences
    3. Intent to Commit Fraud That Will Cause Significant Financial Injury
      1. ABA Rule: a lawyer who is aware that
        a client intends to commit fraud that will cause significant financial injury can disclose confidential information to the extent reasonably necessary to avoid. Reporting is allowed only if (a) the lawyer’s services are being used to perpetrate the crime or fraud, and (b) reporting would prevent the financial crime from occurring or mitigate substantial financial loss.
      2. CA Rule: No Financial Exceptions to Confidentiality
    4. To Establish a Claim or Defense
      1. Controversy between Lawyer & Client
      2. Defense to Criminal Charge or Civil Claim
      3. Allegations Concerning Lawyer’s Representation of the Client
    5. Compelled by Law, Final Court Order or Other Controlling Ethical Duties
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23
Q

Generally, i.e., what kind of privilege is it?

Structure?

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(Duty to Preserve Confidentiality of Information: Attorney-Client Privilege)

A

an evidentiary one, i.e., prevents a court from using subpoena power and contempt to compel the revelation of confidential information

  1. Scope of Privilege
  2. Timing of Privilege
    1. ABA Rules = Applies Indefinitely
    2. CA Rules = Terminates When Estate is Settled
  3. Exceptions
    1. Services Used to Commit Future Crime or Fraud
    2. Allegations Concerning Lawyer’s Representation of the Client
    3. Litigation Between Former Joint Clients of Lawyer
    4. Competency or Intention of Client to Dispose Property By Will or Inter Vivos Transfer
    5. CA Rules: Preventing Crimes of Death or Substantial Bodily Harm
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24
Q

Generally?

CA?

(Duty to Preserve Confidentiality of Information: Work Product Doctrine)

A

Protects materials prepared in anticipation of litigation from discovery by opposing counsel. Work product does not have to be generated by a lawyer

work product in CA only applies to material prepared in anticipation of litigation by attorneys or their agents

25
Q

Structure?

  1. Rule, AND . . .
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(Duty to Communicate)

A
  1. a lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation AND shall:
    1. Promptly Inform of Decision Requiring Client’s Informed Consent
      1. Settlement Offers
        1. Joint Client
    2. Reasonably Consult About Means
    3. Keep Client Reasonably Informed About Status of Matter
    4. Promptly Comply with Reasonable Requests for Information
    5. Consult Client About Limitations on Lawyer’s Conduct
26
Q

Structure?

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(Duty of Competence)

A
  1. Elements
    1. Legal Knowledge & Skill
      1. Educated Without Undue Expense or Delay to Client, OR
      2. Associate with Competent Counsel
    2. Preparation & Thoroughness
  2. Duty of Diligence
  3. Malpractice Action
    1. Negligence Claim
      1. Duty of Due Care
    2. Ethical Violations
      1. Disciplinary Actions
    3. Malpractice Settlements
    4. Limiting Liability for Malpractice
      1. CA Rules = Limiting Malpractice Liability Prohibited
27
Q

Topics? (5)

(Fees & Other Duties)

A
  1. Financial Integrity
  2. Other Duties to the Profession
  3. Duties to Third Parties
  4. Duties to the Adversary
  5. Duties to the Court
28
Q

Topics? (5)

(Fees & Other Duties: Financial Integrity)

A
  1. Non-Contingent Fees
  2. Contingent Fees
  3. Fee Splitting with Attorneys
  4. Fee Splitting with Non-Attorneys
  5. Referral Fees
29
Q

Structure?

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(Fees & Other Duties: Financial Integrity: Non-Contingent Fees)

A
  1. ABA Rules
    1. Fees Must Be Reasonable
    2. Factors Considered in Determining Reasonableness
  2. CA Rules
    1. Fees Cannot Be Unconscionable
    2. Writing Requirement
      1. Exception
        1. < $1000
        2. Routine Work for Regular Client
        3. Corporate Client or Business Organization
        4. Impracticable or Impossible
  3. Arbitration
    1. ABA Rule: encourages attorneys to submit to arbitration to settle fee disputes but does not require arbitration
    2. CA Rule: requires an attorney to submit to arbitration to settle fee disputes if a client requests it
30
Q

Structure?

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(Fees & Other Duties: Financial Integrity: Contingent Fees)

A
  1. ABA Model Rule:
    1. Must Be in Writing
    2. Signed by the Client
    3. State the Method By Which the Fee Is To Be Determined
      1. Percentage to Lawyer
      2. Expenses To Be Deducted From Recovery
      3. Expenses Deducted Before or After Contingent Fee Calculation
      4. Expenses Client Will Be Liable For Regardless of the Outcome
  2. CA Rule:
    1. In Writing
    2. Signed by the Client
    3. State that Lawyer’s Percentage is Negotiable
    4. State the Method By Which the Fee Is To Be Determined
      1. Percentage to Lawyer
      2. Expenses To Be Deducted from Recovery
      3. Expenses Deducted Before or After Contingent Fee Calculation
      4. How Non-Covered Expenses Will Be Paid
    5. Charging Liens Allowed
  3. Contingent Fees Prohibited
    1. Domestic Relations Cases
      1. ABA: prohibited
      2. CA: OK in CA unless the arrangement encourages the breakup of otherwise salvageable marriage
    2. Criminal Cases
      1. ABA: prohibited
      2. CA: silent on subject
  4. Termination Before Recovery (In Quantum Meruit)
31
Q

Structure?

  1. _
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(Fees & Other Duties: Financial Integrity: Fee Splitting with Attorneys)

A
  1. Within Firm
  2. Outside Firm
    1. ABA:
      1. Total Fee Reasonable
      2. Written Disclosure & Consent
      3. Proportional to Work Done (In Quantum Meruit
    2. CA:
      1. Total Fee Reasonable
      2. Written Disclosure & Consent
32
Q

General Rule?

Structure?

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(Fees & Other Duties: Financial Integrity: Fee Splitting with Non-Attorneys)

A

Lawyers are prohibited from sharing fees with non-attorneys. However, attorneys may share fees with such
personnel as paralegals and legal secretaries so long as the lawyer is ultimately responsible for the work done by the personnel.

  1. Exceptions
    1. Death Benefits
    2. Employees
    3. Non-Profit Organization
    4. Qualified Lawyer Referral Services
33
Q

ABA?

CA?

(Fees & Other Duties: Financial Integrity: Referral Fees)

A

A lawyer may not pay a “referral” fee to any other lawyer. That is to say that a lawyer may only be paid a portion of a fee when the lawyer has actually done some portion of work on the case.

a referral fee is not a per se violation of ethical rules, so long as the arrangement is disclosed to the client and no extra amount is charged to the client

34
Q

Topics? (9)

(Fees & Other Duties: Other Duties to the Profession)

A
  1. No Duty to Accept Representation
  2. Duty to Reject Representation
  3. Duty to Withdraw
  4. Duty as Adviser
  5. Duties of Prosecutors
  6. Duty of Dignity and Decorum
  7. Duty to Expedite Cases
  8. Violate Court Rule or Order
  9. Discovery Abuse
35
Q

Structure?

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(Fees & Other Duties: Other Duties to the Profession: No Duty to Accept Representation)

A
  1. Exceptions
    1. Court Appointed
      1. Good Cause
        1. Violate Law or Ethical Rule
        2. Unreasonable Financial Burden, OR
        3. Personal Feelings
  2. Defenseless or Oppressed
  3. Pro Bono Work
36
Q

Structure?

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(Fees & Other Duties: Other Duties to the Profession: Duty to Reject)

A
  1. Violates Law or Ethical Rule
  2. Plaintiff’s Motive = Harass or Maliciously Injure
  3. Frivolous Claim or Defense
    1. Exception: Law Against Lawyer’s Position
  4. Lawyer Incompetent
    1. Educated Without Undue Expense or Delay to Client, OR
    2. Associate with Competent Counsel
  5. Personal Feelings
  6. Attorney’s Mental or Physical Condition
37
Q

Structure?

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(Fees & Other Duties: Other Duties to the Profession: Duty to Withdraw)

A
  1. Court Permission Required in Litigation
    1. Mandatory Withdrawal
    2. Permissive Withdrawal
  2. Mandatory Withdrawal
    1. Attorney’s Mental or Physical Condition
    2. Violate Law or Ethical Duty
    3. Harass or Delay
    4. Client Fires Attorney
  3. Permissive Withdrawal
    1. Good Cause?
      1. Failure to Pay Fees or Expenses
      2. Criminal or Fraudulent Conduct
      3. Morally Repugnant or Imprudent
      4. Attorney’s Financial Burden
      5. Prior Legal Services Used to Commit Crimes or Fraud
      6. Client Freely Assents to Attorney’s Withdrawal
      7. Client Will Not Cooperate
    2. Procedure
      1. Timely Notice
      2. Reasonable Opportunity to Find Another Lawyer
      3. Must Promptly Return
        1. Unspent Advances for Fees & Expenses
        2. Material Papers
          1. CA: forbids withholding material in an effort to receive payment from former client
        3. Client’s Property
38
Q

Structure?

  1. _
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(Fees & Other Duties: Other Duties to the Profession: Duty as Adviser)

A
  1. Scope of Representation
    1. Attorney’s Decisions = Means
      1. Criminal or Fraudulent Conduct
    2. Client’s Decisions = Ends
      1. Substantive Rights
        1. Decision to Sue in Civil Cases
        2. Settlement Offers
        3. Pleas in Criminal Cases
        4. Jury Trial Waiver in Criminal Case
        5. Testify in Criminal Cases
        6. Decision to Appeal
    3. Agreements to Limit Scope
39
Q

Structure?

  1. _
    1. _
    2. _
  2. _
  3. _
  4. _
  5. _

(Fees & Other Duties: Other Duties to the Profession: Duty of Prosecutors)

A
  1. Make Timely Disclosure of Potentially Exculpatory to Defense
    1. Negate the Guilt of the Accused or Mitigate the Offense, OR
    2. Mitigate Sentencing
  2. Refrain from Making Public Statements with Substantial Likelihood of Heightening Public Condemnation of the Accused
  3. To Seek Justice
  4. Higher Ethical Obligations
  5. Must Have Probable Cause
40
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
      2. _
      3. _
        1. _
        2. _
        3. _
  2. _
  3. _
    1. _
    2. _
    3. _
      1. _
      2. _
      3. _
      4. _

(Fees & Other Duties: Other Duties to the Profession: Duty of Dignity and Decorum)

A
  1. Duty to Preserve the Impartiality of the Tribunal
    1. Conduct Prejudicial to the Administration of Justice
    2. Stating or Implying an Ability to Improperly Influence Government Agency or Official
    3. Communications with Jurors
      1. Pre-Trial
      2. During Trial
      3. Post Trial
        1. Prohibited by Law
        2. Desire Not to Communicate Made Known to Lawyer, OR
        3. Misrepresentation, Coercion, Duress or Harassment
  2. Duty to Preserve the Decorum of the Tribunal
  3. Chicanery at Trial
    1. Refer to Irrelevant or Inadmissible Material
    2. Assert Personal Knowledge of Contested Facts
    3. State Personal Opinion
      1. Justness of Cause
      2. Credibility of a Witness
      3. Culpability of Civil Litigant
      4. Guilt or Innocence of an Accused
41
Q

ABA?

CA?

(Fees & Other Duties: Other Duties to the Profession: Duty to Expedite Cases)

A

an attorney has an affirmative duty to expedite cases

an attorney must not delay cases to harass an adversary or for the attorney’s personal gain or convenience

42
Q

Structure?

  1. _
  2. _

(Fees & Other Duties: Other Duties to the Profession: Discovery Abuse)

A
  1. Make a Frivolous Discovery Request, OR
  2. Fail to Reasonably Comply with Discovery Requests of Adversary
43
Q

Structure?

  1. _
    1. _
  2. _
    1. _
      1. _
      2. _
      3. _
    2. _
  3. _
  4. _

(Fees & Other Duties: Duties to Third Parties)

A
  1. Duty of Fair Dealings & Honesty to the Public
    1. Promote Public Confidence
  2. Dealings with the Press
    1. Exceptions
      1. Public Records
      2. Public Warnings
      3. Statements Required to Protect Client From Substantially Undue Prejudice from Recent Publicity Not Self-Initiated
    2. Prosecutors
  3. Counseling Criminal or Fraudulent Acts
  4. Must Not Violate Legal Rights or Delay, Burden or Embarrass
44
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
      2. _
  2. _
  3. _
  4. _

(Fees & Other Duties: Duties to the Adversary)

A
  1. Duty Not to Speak with Parties Represented by Counsel
    1. “With a Person”
    2. Second Legal Opinion Exception
    3. “Employee”
      1. Former Employee
      2. CA Rule: in CA, people who (1) regularly consult with or supervise; (2) people who can bind the corporation with their statements; and (3) people whose statements may be imputed to the organization are considered the client(s), and a lawyer must not speak with those people without the corporation’s counsel’s permission
  2. Duty to Return Material Mistakenly Delivered
  3. Duty to Avoid Deception
  4. Must Not Violate Legal Rights or Delay Burden or Embarrass
45
Q

Topics? (6)

(Fees & Other Duties: Duties to the Court)

A
  1. Duty of Candor & Fairness
  2. Duty to Present Facts & Evidence Truthfully
  3. Duty to Produce Evidence
  4. Ex-Parte Proceedings
  5. Duty to Uphold the Law
  6. Duty to Be Candid About the Law
46
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. ​_
        1. ​_
        2. _
        3. _
          1. ​_
          2. _
  2. _
    1. ​_
    2. _
  3. _
    1. ​_
  4. _

(Fees & Other Duties: Duties to the Court: Duty to Present Facts & Evidence Truthfully)

A
  1. Duty to Prevent Client Perjury
    1. Reasonable Belief, Not Knowledge
    2. Civil Case
    3. Criminal Case
      1. Reasonable Remedial Measures
        1. Counsel Client to Not Testify or Testify Truthfully
        2. Permissive Withdrawal
        3. Split Authority on Step 3 if 1 & 2 Fail
          1. ABA: Attorney Must Inform Judge
          2. CA: allows the defendant to testify in narrative fashion but the attorney cannot further the deception
  2. Scope of Duty
    1. Attorney Learns of Client’s Perjury After Perjury
    2. Duty Ends with Proceedings
  3. Duty to Prevent Witness Perjury
    1. Refuse to Put Witness on the Stand
  4. Witness Expenses
47
Q

Structure?

  1. _
    1. _
    2. _
      1. _
      2. _
      3. _
  2. _

(Fees & Other Duties: Duties to the Court: Duty to Produce Evidence)

A
  1. Duty Not to Obstruct Access to or Tamper with Fruits or Instrumentalities of a Crime
    1. Related Statements
    2. Interference with Evidence
      1. Compelled to Testify
      2. Source
      3. Reasonable Time to Prepare Case
  2. Prosecutor’s Duty to Timely Disclose Evidence Favorable to the Defense
48
Q

Structure?

  1. _
    1. _
    2. _
  2. _
    1. _
      1. _
    2. _
      1. _
      2. _

(Fees & Other Duties: Duties to the Court: Duty to Uphold the Law)

A
  1. Assisting Crimes
    1. Mandatory Withdrawal
    2. Permissive Withdrawal
  2. Preventing Crimes
    1. Preventing Crimes of Death or Substantial Bodily Harm
      1. CA Rule: must first, if reasonable under the circumstances, make a good faith effort to persuade the client not to commit the act and inform your client of your decision to reveal her confidences
    2. Intent to Commit Fraud That Will Cause Significant Financial Injury
      1. ABA
      2. CA
49
Q

Two Duties?

(Fees & Other Duties: Duties to the Court: Duty to Be Candid About the Law)

A
  1. Duty to Cite Adverse Authority from Controlling Jurisdiction & Directly On Point
  2. Duty to Prevent Frivolous Claims/Defenses
50
Q

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
        1. _
  2. _
  3. _
  4. _
    1. _

(Property (Cash))

A
  1. Duty to Protect Client’s Property
    1. Money
      1. Client Trust Account
      2. Pooled Client Trust Account
      3. No Borrowing or Commingling
        1. Exception to Commingling
  2. Duty to Promptly Notify & Deliver
  3. Duty to Withhold
  4. Duty to Keep Good Records
    1. CA Rule: must keep records of client’s property for 5 years after final distribution and make these records available to the State Bar for audit
51
Q

Topics? (8)

(Regulatory Controls & Unauthorized Practice)

A
  1. Advertising Rules
  2. Solicitation Rules
  3. Unauthorized Practice of Law
  4. Duty Not to Go into Business with a Nonlawyer
  5. Law-Related Services
  6. Multi-lurisdictional Practice
  7. Subordinate Lawyers
  8. Responsibilities of Partners, Managers & Supervisory Lawyer
52
Q

Structure?

  1. _
  2. _
    1. _
    2. _
      1. _
      2. _
      3. _
  3. _
    1. _
    2. _
    3. _
  4. _
    1. _
    2. _
      1. _
      2. _
      3. _
      4. _
  5. _
    1. _
      1. _
    2. _

(Regulatory Controls & Unauthorized Practice: Advertising Rules)

A
  1. Definition of Advertising
  2. General Rule
    1. Must Not Harass
    2. Procedural Requirements
      1. Be Labeled
      2. Identify at Least One Attorney Responsible for Content
      3. Keep Records
  3. Requirements for Regulating Advertising (Commercial Speech Doctrine)
    1. Government Asserts Substantial Interest
    2. Regulation Directly Advances This Interest
    3. Narrowly Tailored
  4. Claims of Specializations
    1. ABA
    2. CA
      1. Education
      2. Experience
      3. Examination
      4. Evaluation
  5. CA Advertising Presumptions
    1. Guarantees, Warranties or Prediction of Results
      1. Testimonials or Endorsements
    2. At Hospitals
53
Q

Structure?

  1. _
  2. _
    1. _
      1. _
      2. _
    2. _
  3. _
    1. _
    2. _
    3. _

(Regulatory Controls & Unauthorized Practice: Solicitation Rules)

A
  1. Definition of Solicitation
  2. General Rule
    1. Live or Telephone Contact
      1. ABA
      2. CA
    2. Agents
  3. CA Solicitation Presumptions
    1. At Scene of Accident
    2. On Route to Hospital or Other Medical Facility
    3. To Prospective Clients Lacking the Physical or Medical Capacity for Reasonale Judgment
54
Q

Structure?

  1. _
    1. _
    2. _
    3. _
      1. _
        1. _
          1. _
          2. _
        2. _
          1. _
            1. _
              1. _
            2. _
  2. _
    1. _
      1. _
        1. _
        2. _
    2. _
      1. _
  3. _

(Regulatory Controls & Unauthorized Practice: Unauthorized Practice of Law)

A
  1. Practice of Law?
    1. Legal Knowledge & Skill
    2. Advice on Binding Legal Rights, OR
    3. Activities Traditionally Performed by Lawyers
      1. Draft Legal Documents
        1. Exceptions
          1. Pro Se Legal Documents
          2. Fill in the Blank Documents
      2. Appear in Court to Represent or Assist
        1. Exceptions
          1. Pro Se Representation
            1. Corporations Must Be Represented By an Attorney
          2. Students
  2. Unauthorized Practice of Law by Lawyers
    1. Not Admitted For Practice in Jurisdiction
      1. Exceptions
        1. Pro Hac Vice Status
        2. Temporary Practice Arising Out of Authorized Practices
    2. Assisting Nonlawyer in Unauthorized Practice of Law
      1. Exception: Pro Se Representation
  3. Law Clerks & Paralegal
55
Q

Structure?

  1. _
    1. _
      1. _
      2. _
      3. _
  2. _
    1. _
    2. _

(Regulatory Controls & Unauthorized Practice: Duty Not to Go into Business with a Nonlawyer)

A
  1. Separate & Apart Businesses
    1. Requirements
      1. Advise & Allow Other Party to Seek Legal Counsel
      2. Disclose & Explain
      3. Fair Terms
  2. Reciprocal Referral Relationship with Non-Lawyer
    1. Non-Exclusive
    2. Explain Arrangement to Client When Referred
56
Q

Structure?

  1. _
    1. _
    2. _
  2. _
    1. _
    2. _
      1. _
      2. _
      3. _
      4. _

(Regulatory Controls & Unauthorized Practice: Multi-Jurisdictional Practice)

A
  1. ABA Rules
    1. Pro Hac Vice Status
    2. Temporary Practice Arising Out of Authorized Practice
  2. CA Rules
    1. Litigators & Transactional Attorneys
    2. Out-of-State Legal Services Attorneys
      1. Must Work Under Close Supervision of CA Attorney
      2. Register with CA State Bar
      3. Pay Annual Dues
      4. Satisfy Continuing Legal Education Requirements
57
Q

Structure?

  1. _
  2. _
    1. _
    2. _
    3. _
    4. _
    5. _
    6. _

(Regulatory Controls & Unauthorized Practice: Reporting Misconduct)

A
  1. ABA Rules
  2. CA Rules
    1. 3 Malpractice Cases Within 12 Months
    2. Charged with Felony
    3. Convicted of Other Serious Crimes
    4. Disciplined for Ethical Violations in Another jurisdiction
    5. > $1000 Sanctions
    6. Civil Liability for Fraud
58
Q

Types? (2)

(Regulatory Controls & Unauthorized Practice: Subordinate Lawyers)

A
  1. Clear Violation
  2. Debatable Violation
59
Q

Structure?

  1. _
  2. _
    1. _

(Regulatory Controls & Unauthorized Practice: Responsibilites of Partners, Managers, & Supervisory Lawyers)

A
  1. Duty to Supervise Subordinates
  2. Ethical Violations of Subordinates
    1. Fails to Take Remedial Action

Bar Essays (15 decks)

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