Professional Responsibility 31-45 Flashcards
How does a lawyer properly withdraw?
Lawyer must:
Provide timely notice to the client; AND
Promptly return any unspent fees and all of the client’s papers and property.
*After a lawsuit has been filed, the lawyer MUST obtain the court’s approval to withdraw.
Priority: HIGH
Permissive Withdrawal
Under the ABA, when MAY a lawyer withdraw from representing a client?
Client persists on a criminal or fraudulent course of action;
Client used lawyer’s services to commit a crime or fraud;
Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees);
Representation has been rendered unreasonably difficult by the client;
Other good cause exists;
Withdrawal will not materially damage the client’s interests;
Client insists on an action the lawyer deems repugnant or has a fundamental disagreement with; OR
Representation will result in an unreasonable financial burden on lawyer.
Priority: Medium
Permissive Withdrawal
In California, when MAY a lawyer withdraw from representing a client?
Client persists on a criminal or fraudulent course of action;
Client used lawyer’s services to commit a crime or fraud;
Client fails to substantially fulfill an obligation after reasonable warning (i.e. pay legal fees);
Representation has been rendered unreasonably difficult by the client;
Other good cause exists;
Client insists on unwarranted claim, defense, position, or demand;
Client freely and knowingly consents;
Inability to work with co-counsel;
Mental or physical condition makes representation difficult; OR
Likely to violate an ethical rule.
Priority: Medium
Duty of Candor
What types of conduct are prohibited?
To knowingly:
Make a false statement of fact/law;
Fail to correct a false statement of material fact or law;
Fail to disclose known controlling legal authority (unless opposing counsel does so); OR
Offer or use evidence that the lawyer knows to be false.
Priority: HIGH
When a criminal defendant wants to testify on his own behalf (and lawyer knowshe will commit perjury), what MUST the lawyer do?
Try to persuade client to not commit perjury;
Attempt to withdraw from the case; AND
If attempt to withdraw is unsuccessful, then:
ABA: Lawyer must tell the court (including confidential info, if necessary).
CA: Allow defendant to testify in narrative fashion (cannot disclose confidential info to the court).
Priority: HIGH
What is a lawyer required to do during an authorized Ex Parte Proceeding with the court?
To inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).
Priority: Low
A lawyer CANNOT file frivolous positions with the court.
What does the rule specifically prohibit?
It prohibits:
Filing frivolous claims, defenses, arguments, or positions with the Court.
*A good faith argument for an extension, modification, or reversal of existing law is NOT deemed frivolous.
In CA, the rule also specifically prohibits actions, defenses, positions, and appeals that lack probable cause AND are intended to harass or maliciously injure.
Priority: HIGH
Under what circumstances can a lawyer request a person (other than a client) to refrain from giving information to another party?
The other party is a relative, employee, or other agent of the client; AND
The lawyer reasonably believes that silence will not adversely affect the person’s interests.
Priority: Low
When is a lawyer permitted to pay a witness?
For:
Expenses reasonably incurred (i.e. travel, hotel);
Reasonable compensation for loss of time; OR
Reasonable fee to an expert witness.
*CANNOT offer an unlawful inducement to a witness ormake payments contingent upon the content of the testimony or outcome of the case.
Priority: Medium
Lawyer as Witness Rule
(ABA vs. CA)
A lawyer CANNOT act as trial counsel when likely to be a necessary witness, unless:
it relates to an uncontested issue;
it relates to the nature/value of legal services rendered in case;
the lawyer’s disqualification would create a substantial hardship on the client [ABA only]; OR
lawyer has obtained informed written consent of the client [CA only].
Priority: Low
When can a lawyer (that knows a person is represented by counsel in a matter) speak to that person regarding that matter?
If:
Lawyer has permission from the other person’s lawyer;
*Even if the represented person agrees, it is still a violation without the permission of their lawyer.
Authorized by law or court order; OR
Communications with a public official, board committee or body [CA only].
Priority: HIGH
When are Extrajudicial Statements NOT permitted?
A lawyer participating in an investigation/litigation CANNOT make statements to the public which:
he knows (or should know),
will be disseminated by means of public communication; AND
will have a substantial likelihood of materially prejudicingthe case or influencing jurors.
Priority: Medium
What are the exceptions to the Extrajudicial Statements rule?
Statements:
To protect the client from substantial undue prejudice.
Of the claim, offense, defense, or identity of persons (unless prohibited by law).
Regarding information in a public record.
To inform the public of an ongoing investigation.
Requesting assistance in obtaining evidence.
Warning of danger.
Of certain information in a criminal case.
Priority: Medium
What types of Extrajudicial Statements are Prosecutors NOT permitted to make?
Statements that have a substantial likelihood of enhancing public disapproval of the accused.
Prosecutors MUST exercise reasonable care to prevent others under their supervision/direction from making statements that the Prosecutor would be prohibited from making.
Priority: Medium
What type of evidence MUST a Prosecutor disclose to the Defendant?
Prosecutors MUST disclose any exculpatory or mitigating evidence.
(The evidence must be provided within a sufficient time to allow the defendant to prepare for trial.)
Priority: Medium
