PROFESSIONAL RESPONSIBILITY Flashcards
7
CLIENTS LOVE FIERCE COUNSEL, COURTS FEEL DIFFERENTLY
- COMPETENCE
- LOYALTY
- FINANCIAL INTEGRITY
- CONFIDENTIALITY
- CANDOR
- FAIRNESS
- DECORUM
2
FEE SPLITTING WITH NONLAWYERS
- ONLY WHERE PENSION OR DEATH BEENFITS TO DEAD LAWYER
- PROFIT SHARING RETIREMENT PLAN
- NONPROFIT (CA)
3
DUTY OF LOYALTY
EXERCISE SOLE FREE
- EXERCISE PROFESSIONAL JUDGMENT
- SOLELY FOR BENEFIT OF CLIENT
- FREE FROM COMPROMISING INFLUENCES OR LOYALTIES
5
CONTINGENT FEE AGREEMENT RULES
- IN WRITING
- SIGNED BY CLIENT
- STATE BASIS OF FEE CACLUATION
- STATE HOW COSTS WILL BE HANDLED
- CA = ABA PLUS FEE NEGOTIABLE AND HOW OFFSHOOT CASES HANDLED
4
DUTY OF COMPETENCY
BOTH THE MODEL AND CA RULES IMPOSE SIMILAR REQUIREMENTS THAT AN ATTORNEY HAVE THE REQUISITE
- KNOWLEDGE
- SKILL
- THOROUGHNESS
- PREPARATION REASONABLY NECESSARY
- TO REPRESENT HER CLIENT COMPETENTLY
4
DUTY OF CANDOR - AN ATTORNEY MUST NOT
POEM
- KNOWINGLY FACILITATE CLIENT PERJURY
- CITE OVERRULED CASES OR REPEALED STATUTES
- FALSIFY EVIDENCE
- MISQUOTE PUBLISHED LANGUAGE
5
DUTY TO ADVERSARY - DUTY NOT TO SPEAK TO EMPLOYEES OF PARTIES REPRESENTED BY COUNSEL
- NEED CONSENT IF OFFICER, DIRECTOR, MANAGING AGENT, OR PARTNER.
- (ABA MANAGERIAL POSITION)
- OR REGARDING A SUBJECT WHICH THE EMPLOYEE’S ACTIONS COULD EXPOSE THE PARTY TO CRIMINAL OR CIVIL LIABILITY
- OR MADE TO AN AGENT WHO IS AUTHORIZED TO SPEAK ON BEHALF OF THE CORPORATION.
- FORMER EMPLOYEE = NOT REQUIRED
2
ABA DUTIES OF SUPERVISING ATTORNEYS - SUPERVISING ATTORNEYS WILL BE LIABLE FOR THE ACTS OF UNDERLINGS WHERE
- RATIFIED CONDUCT
- KNEW OF CONDUCT AND FAILED TO TAKE ACTION.
2
DUTIES REGARDING OTHER MEMBERS OF THE FIRM
- MANAGING PARTNERS MAKE REASONABLE EFFORTS TO ENSURE EVERYONE IN FIRM FOLLOWS RULES.
- CA - FIRM MEMBERS CAN BE DISCIPLINED FOR KNOWING ABOUT A FELLOW FIRM MEMBERS VIOLATION AND DOING NOTHING TO PREVENT IT.
2
DUTY TO EXPEDITE CASES
- CA ATTORNEYS MUST NOT DELAY TO HARASS ADVERSARY
- ABA HAS AN AFFIRMATIVE DUTY TO EXPEDITE
4
SPECIAL DUTIES OF PROSECUTORS - PROSECUTORS MUST NOT
BSMF
- BRING A CASE WITHOUT PROBABLE CAUSE
- SUBPOENA A LAWYER TO PRESENT EVIDENCE ABOUT A CLIENT UNLESS ESSENTIAL AND UNPRIVILEGED
- FAIL TO DISCLOSE EVIDENCE FAVORABLE TO THE DEFENSE
- MAKE COMMENTS THAT HAVE A SUBSTANTIAL LIKELIHOOD OF HEIGHTENING PUBLIC CONDEMNATION OF THE ACCUSED
4
CA MULTI JURISDICTIONAL PRACTICE REQUIRES
- LAWYER MUST REGISTER WITH CA BAR
- PAY CA BAR DUES
- MEET CLE REQUIREMENTS
- BE SUBJECT TO CA ETHICS RULES.
2
WHAT IS THE CONSEQUENCE OF OBEYING ORDER FROM A SUPERVISING PARTNER THAT CAUSE A BREACH OF DUTY
- IF IT WAS A CLEAR VIOLATION, DISCIPLINE
- SUBJECT TO DEBATE, ONLY SUPERVISOR RESPONSIBLE
6
DUTIES OF CANDOR - CLIENT PERJURY
- CIVIL: REFUSE TO CALL CLIENT AS WITNESS IF YOU KNOW CLIENT WILL PERJURE HIMSELF
- CRIMINAL:
- COUNSEL CLIENT TO TESTIFY TRUTHFULLY
- PERMISSIVE WITHDRAW
- CA AND (AND ABA IF REQUIRED BY STATE) ALLOW CLIENT TO TESTIFY IN NARRATIVE FASHION BUT DON’T FURTHER PERJURY
- ABA: REPORT TO TRIBUNAL.
1
DUTY REGARDING THE PRESS
AVOID OUT OF COURT STATEMENTS THAT HAVE SUBSTANTIAL LIKELIHOOD OF MATERIALLY PREJDUCING CASE
4
EXCEPTIONS TO NOT MAKING STATEMENTS TO PRESS
- UNLESS IN PUBLIC RECORD
- WARNING PUBLIC
- INFORMING OF ONGOING INVESTIGATION
- PROTECTING CLIENT FROM ALREADY MADE BAD STATEMENTS.
2
REPRESENTATION OF A CORPORATION - WHEN A LAWYER REPRESENTS A CORPORATION, HE REPRESENTS
- ONLY THE ENTITY
- NOT ITS EMPLOYEES
4
CONFLICTS OF INTEREST - BOTH THE ABA AND MODEL RULES LIMIT
CAMEP
- REPRESENTATION OF CLIENTS WITH CONFLICTING INTERESTS.
- CLIENTS WITH INTERESTS DIRECTLY ADVERSE
- SUBSTANTIALLY RISK MATERIAL IMPAIRMENT TO REPRESENTATION
- CA REQUIREMENTS EXTENDED TO POTENTIAL CONFLICTS
7
DUTIES TO THE COURT
SCAPE UP
- DUTY OF CANDOR AND FAIRNESS
- DUTY TO PRESENT FACTS AND EVIDENCE TRUTHFULLY
- DUTY TO PRODUCE EVIDENCE
- NO EX PARTE COMMUNICATION
- NO ASSERTING PERSONAL KNOWLEDGE OF THE FACTS AT ISSUE
- DUTY TO UPHOLD THE LAW
- DUTY TO STATE LAW CORRECTLY
2
REFERRAL FEES TO AN ATTORNEY FOR A CASE
- ABA = YES, BUT CONFLICT OF INTEREST REQUIREMENTS WILL APPLY TO BOTH ATTORNEYS, FEE IS PROPORTIONATE AND CLIENT AGREES IN WRITING.
- CA = OK IF CLIENT AGREES IN WRITING AND NO EXTRA CHARGE
2
DUTY TO NOT COMMIT DISCOVERY ABUSE
- NO FRIVOLOUS DISCOVERY REQUESTS
- NO FAILURE TO COOPERATE WITH DISCOVERY
4
DUTY OF DILIGENCE
- DILGENTLY
- ZEALOUSLY
- PROMPTLY
- PURSUE MATTER TO COMPLETION
- DESPITE OPPOSITION OR INCONVENIENCE
1
DUTY OF CANDOR - IF YOU KNOW WITNESS IS GOING TO PERJURE HIMSELF
- DO NOT PUT WITNESS ON THE STAND
2
DUTY TO PRODUCE EVIDENCE - AN ATTORNEY MUST NOT
OBSTRUCT ACCESS TO EVIDENCE
TAMPER WITH FRUITS OF A CRIME
6
PERMISSIVE WITHDRAWAL IS ALLOWED WHERE
- FAILURE TO PAY FEES
- CRIME OR FRAUDULENT CONDUCT
- FINANCIAL BURDEN
- MORALLY REPUGNANT
- CLIENT WON’T COOPERATE
- CLIENT AGREES
- CA - WANTS ASSERT FRIVOLOUS CLAIM OR DEFENSE
2
MALPRACTICE ACTIONS
LIMITING POTENTIAL LIABILITY FOR MALPRACTICE ACTIONS
- ABA - YES, IF INDEPENDENT COUNSEL
- CA - NOPE
2
MALPRACTICE SETTLEMENTS
- CA - NO SETTLING W/CLIENT UNLESS CLIENT IS ADVISED TO SEEK INDEPENDENT COUNSEL AND GETS A CHANCE TO DO SO
- ABA - OK, IF ADVISE SEEKING INDEPENDENT COUNSEL
2
WHAT DOES A REASONABLE SUSPICION OF CLIENT PERJURY REQUIRE?
- REASONABLE BELIEVE DOES NOT REQUIRE REPORTING
- ABA REQUIRES RESOLVE DOUBTS
4
CA - CRIMINAL CASES - PROSECUTOR/ATTORNEY CAN ALSO MAKE STATEMENTS REGARDING
- IDENTITY, RESIDENCE, OCCUPATION, FAMILY STATUS OF ACCUSED
- FACT, TIME AND PLACE OF ARREST
- IDENTITY OF INVESTIGATING OFFICERS
- LENGTH OF INVESTIGATION.
6
ENTERING INTO A BUSINESS TRANSACTION W/A CLIEN REQUIRES THAT
- CLIENT ADVISED TO SEEK INDEPENDENT COUNSEL
- TERMS ARE FAIR AND REASONABLE
- CA REQUIRES UNDERSTANDABLE LANGUAGE
- FULL DISCLOSURE IN WRITING
- LAWYER’S ROLE IN BUSINESS STATED
- CLIENT GIVES FULL WRITTEN CONSENT
2
DUTY TO COMMUNICATE - ATTORNEY HAS A DUTY TO KEEP CLIENT
- REASONABLY INFORMED ABOUT SIGNFICANT DEVELOPMENTS RELATING TO THE REPRESENTATION
- PROMPTLY INFORM CLIENT OF ANY DECISION REQUIRING INFORMED CONSENT (ABA)
2
DUTY OF CONFIDENTIALITY - AN ATTORNEY MUST
- MAINTAIN INVIOLATE AND
- KEEP SECRET THE INFORMATION
- LEARNED DURING LEGAL REPRESENTATION
2
CA PROSCRIPTION TO NOT THREATEN CHARGES IN A CIVIL CASE TO GAIN A DISCIPLINARY ADVANTAGE DOES NOT APPLY TO
- THREATENING TO INITIATE CONTEMPT PROCEEDINGS AGAINST A PARTY
- FOR FAILING TO COMPLY WITH A COURT ORDER
4
CONFLICTS OF INTEREST ARE OK WHERE
- REASONABLE BELIEF (ABA ONLY)
- WRITTEN CONSENT IS GIVEN
- NO BREACH OF CONFIDENTIALITY
- DOESN’T MATERIALLY IMPAIR REPRESENTATION
4
MANDATORY WITHDRAWAL IS REQUIRED WHERE
- PHYSICAL OR MENTAL CONDITION RENDERS REPRESENTATION UNREASONABLY DIFFICULT
- REPRESENTATION WILL RESULT IN VIOLATION OF RULES
- CLIENT DISCHARGES ATTORNEY
- CLIENT WANTS TO PURSUE LAWSUIT FOR HARRASSMENT OR MALICIOUS INJURY - CA
2
FEE AGREEMENT WRITING REQUIREMENT FOR NONCONTINGENT CASE
- ABA - NO WRITING REQUIREMENT, JUST PROMPT DISCLOSURE
- CA - REQUIRED IF REASONABLY EXPECTED TO EXCEED 1,000 DOLLARS.
2
FACTORS TO ASSESS TO ENSURE FEES AREN’T UNCONSCIONABLE OR UNREASOANBLE - THE ATTORNEY MUST BASE FEES ON
- AMOUNT OF TIME AND SKILL SHE WILL USE
- LEVEL OF DIFFICULTY OF THE CASE.
3
DUTY OF DECORUM TO TRIBUNAL - A LAWYER SHALL NOT
- SEEK TO INFLUENCE JURORS OR JUDGES
- COMMUNICATE EX PARTY WITH JUDGES OR JURORS DURING TRIAL
- COMMUNITATE WITH JURORS AFTER DISCHARGE IF THEY DO NOT WISH TO COMMUNICATE.
2
DUTY TO MAINTAIN DIGNITY OF PROFESSION - AN ATTORNEY MUST NOT
- BRINGS DISDAIN TO THE PROFESSION IN THE PUBLIC EYE
- UNJUSTIFIABLY REPRESENT ANOTHER LAWYER IS DISHONEST OR UNTRUSTWORTHY
2
DUTY OF SAFEKEEPING PROPERTY - AN ATTORNEY HAS THE DUTY TO HOLD THE PROPERTY OF CLIENTS OR THIRD PERSONS CONNECTED WITH REPRESENTATION
- SEPARATE FROM LAWYER’S OWN PROPERTY
- MUST KEEP ACCOUNTING RECORDS OF THE SAME FOR FIVE YEARS.
2
WHERE AN ATTORNEY REPRESENTS A PARTNERSHIP, HE REPRESENTS
- THE ENTITY
- EACH PARTNER
1
WHERE AN ATTORNEY REPRESENTS A PARTNERSHIP, HE MUST AVOID
- REPRESENTING ANY GENERAL PARTNER IN ANY WAY ADVERSE TO OTHER GENEREAL PARTNERS
2
NON-CLIENT FEES THAT CAN EXIST IN ATTY TRUST ACCOUNTS
- REASONABLE AMT FOR BANK FEES
- ATTORNEY PORTION OF CLIENT SETTLEMENT FUNDS (MUST BE WITHDRAWN AS SOON AS REASONABLY POSSIBLE.)
4
EMPLOYMENT OF DISBARRED ATTORNEY
- CA - OK WHERE BAR NOTIFIED AND CLIENT INFORMED.
- CAN DRAFT BRIEFS, LETTERS AND ACCOMPANY TO DEPOSITIONS.
- CAN’T PRACTICE LAW.
- ABA - PROHIBITS ASSISTING IN THE UNAUTHORIZED PRACTICE OF LAW.
3
CA - GIFTS FOR RECOMMENDING SERVICES
- CA ATTORNEY CAN’T GIVE GIFTS TO MEDIA IN EXCHANGE FOR PUBLICITY.
- CANT GIVE GIFTS FOR RECOMMENDATION OF EMPLOYMENT
- CAN USE STATE BAR APPROVED REFERRAL SERVICES
7
ATTORNEYS MAY SELL LAW FIRM WHERE
- ALL OR SUBSTANTIALLY ALL OF LAW FIRM
- SOLD TO OTHER ATTORNEY
- FEES NOT INCREASED
- 90 DAYS WRITTEN NOTICE GIVEN TO CLIENT TO SEEK SUBSTITUTION
- IF NO NOTICE RECEIVED, PURCHASE ASSUMES REPRESENTATION
- CONFIDENTIAL INFO MUST NOT BE REVEALED TO NON-MEMBERS
- ABA - SELLER MUST CEASE ENGAGING IN PRIVATE PRACTICE OF LAW IN THE GEOGRAPHIC AREA, OR IN THE AREA OF PRACTICE THAT HAS BEEN SOLD.
2
CA - DISCIPLINARY CONDUCT FOR DISCRIMINATION WILL NOT BE IMPOSED UNTIL
- FINAL JUDGMENT THAT BEHAVIOR WAS DISCRIMINATORY
- APPEALS EXHAUSTED
7
DISCRIMINATION TO CA BAR IS
RAD RAGS
- RACE
- ALIENAGE
- DISABILITY
- SEXUAL PREFERENCE
- GENDER
- RELIGION
- AGE
2
CA - A MEMBER CANNOT ADVISE A CLIENT TO VIOLATE LAW OR RULING UNLESS HE HAS A
- GOOD FAITH BELIEF LAW IS INVALID.
- MAY TAKE GOOD FAITH STEPS TO TEST VALIDITY OF LAW.
2
CA - AN ATTORNEY CANNOT TAKE OR CONTINUE REPRESENTATION WHERE HE KNOWS THE PURPOSE OF THE REPRSENATION IS TO
- HARASS OR MALICIOUSLY INJURE THE OPPONENT
- NO PROBABLE CAUSE.
4
CA - ATTORNEY CLIENT CONFLICTS MAY COME FROM
- ATTORNEY’S RELATIONSHIP W/PARTY OR WITNESS IN MATTER
- ATTORNEY’S PREVIOUS RELATIONSHIP W/PARTY OR WITNESS IN MATTER
- ATTORNEY HAS RELATIONSHP W/PARTY AFFECTED BY OUTCOME OF MATTER
- ATTORNEY HAS PERSONAL INTEREST IN THE MATTER
4
CA ATTORNEYS WHO DON’T HAVE PROFESSIONAL LIABILITY INSURANCE HAVE TO TELL CLIENTS WHEN IT IS FORESEEABLE THEIR REPRESENTATION WILL EXCEED
FOUR HOURS
2
CA - ATTORNEY MUST PROMPTLY INFORM A CLIENT OF
- SETTLEMENT OFFERS
- PLEA OFFERS
2
CA - DUTY REGARDING WITNESSS AND AVAILABILITY - AN ATTORNEY CANNOT
- ADVISE OR DIRECTLY OR INDIRECTLY CUASE A PERSON TO SECRETE HIMSELF
- LEAVE THE JURISDICTION AND MAKE HIMSELF UNAVAILABLE AS A WITNESS.
8
DUTIES REGARDING JURORS - AN ATTORNEY CANNOT
V, J, N, H, I, F, E, D
In Fury
En Dury
No Hurry
with a Very
Jury
BOLDED DUTIES ARE ONLY CA DUTIES
- DIRECLTY OR INDIRECTLY COMMUNICATE WITH MEMBER OF VENIRE
- DIRECTLY OR INDIRECTLY COMMUNICATE WITH JURY DURING TRIAL
- WHERE ATTORNEY NOT CONNECTED TO CASE, STILL CAN’T COMMUNCIATE REGARDING CASE W/KNOWN JUROR
- AFTER TRIAL, CAN’T QUESTION JUROR TO HARRASS, EMBARASS OR INFLUENCE FUTURE JURY SERVICE
- NO OUT OF COURT INVESTIGATIONS OF JURORS TO INFLUENCE STATE OF MIND
- ALL RULES APPLY TO FAMILY MEMBERS OF JURORS
- ALL RULES APPLY TO EMPANNELED, DISCHARGED OR EXCUSED JUROR
- FAIL TO PROMPTLY DISCLOSE SUCH COMMUNICATIONS
2
CALIFORNIA DEPO NOTICE TIMING
- 10 DAYS PARTY DEPO
- 20 DAYS THIRD PARTY DEPO (SUBPOENA)
3
CA RULES - DUTY TO OPPOSING PARTY - DUTY TO INFORM OPPOSING PARTY OF RELEVANT FACTS
- GENERALLY NO AFFIRMATIVE DUTY
- TO INFORM OPPOSING PARTY OF RELEVANT FACTS.
- THIS DOES NOT INCLUDE HELPING CLIENT PERPETRATE A FRAUD
5
ABA’S DUTY OF FAIRNESS TO OPPOSING COUNSEL
- NO OBSTRUCTING ACCESS TO EVIDENCE
- NO FALSIFYING EVIDENCE
- COOPERATE W/DISCOVERY REQUESTS
- NO MAKING FRIVOLOUS DISCOVERY REQUESTS
- DISOBEY OBLIGATIONS OF TRIBUNAL UNLESS OPEN ASSERTION THAT NO VALID OBLIGATION EXISTS
- TO INDUCING WITNESS TO TESTIFY
- EXPEDITE LITIGATION
- NO ASKING THIRD PARTY TO REFRAIN TO GIVE RELEVANT INFORMATION UNLESS PARTY IS RELATIVE OR AGENT OF CLIENT AND PARTY’S INTERESTS WILL NOT BE ADVERSELY AFFECTED BY THE LOSS
7
DUTY OF LOYALTY FACT PATTERN TRIGGERS
BE LOYAL, (OR) U (ARE) PRETTY GUARANTEED TO LOSE CLIENTS
- LIABILITY LIMITS
- USE OF CLIENT’S CONFIDENTIAL INFORMATION AGAINST CLIEN
- PUBLICATION RIGHTS
- GIFTS FROM CLIENTS
- THIRD PARTY FEE PAYMENTS
- LOANS TO CLIENTS
- CLOSE RELATIONSHIP WITH OPPOSING COUNSEL OR PARTY.
2
CALIFORNIA DUTY TO DISCLOSE TO CLIENTS WHEN YOU HAVE A CLOSE RELATIONSHIP WITH THE OPPOSING COUNSEL OR PARTY
- CALIFORNIA RECOGNIZES ALL CLOSE INTIMATES
- BUT AS A PERSONAL RELATIONSHIP, IT ONLY REQUIRES WRITTEN DISCLOSURE
3
ABA AND MAKING LOANS TO CLIENT FOR LIVING EXPENSES
- NOT ALLOWED
- DOING SO GIVES LAWYERS TOO GREAT OF A STAKE IN OUTCOME OF ITIGATION
- ENCOURAGES CLIENTS TO BRING LAWSUITS.
2
DIRECT SOLICITATION OF CLIENTS VIA EMAIL
- NO ABA
- CA DOESN’T PROHIBIT
4
RESTRICTIONS ON RIGHT TO PRACTICE
- ABA AND CA - NO, UNLESS FOR RETIREMENT AFTER PRACTICE
- CA - NO UNLESS TERMINATES AT END OF EMPLOYMENT
- CA - NO UNLESS B&P CODE ALLOWS
6
WHEN MUST A CALIFORNIA ATTORNEY SELF REPORT WITHIN 30 DAYS?
- THREE OR MORE LAWSUITS IN PAST 12 MONTHS FOR MALPRACTICE
- ENTRY OF SANCTIONS (UNLESS FOR DISCOVERY OR UNDER 1000)
- JUDGMENT FOR FRAUD, MISREPRESENATION, BREACH OF FIDUCIARY DUTY
- DISCIPLINE FROM OTHER LICENSING BOARD
- INDICTMENT FOR FELONY
- CONVICTION FOR ANY CRIME INVOLVING AN ELEMENT OF MORAL TURPITUDE COMMITTED IN PRACTICE OF LAW
3
REVISED CA OATH INCLUDES PROMISE TO STRIVE TO CONDUCT ONE’S SELF AT ALL TIMES WITH
- DIGNITY
- COURTESY
- INTEGRITY
3
PRIMARY RIGHT THEORY - A CAUSE OF ACTION IS COMPRISED OF
- A PRIMARY RIGHT OF THE PLAINTIFF
- A DUTY OWED BY THE DEFENDANT
- A BREACH OF THIS DUTY
4
CALIFORNIA PLEA IN ABATEMENT
- WHERE THERE IS A PRIOR ACTION PENDING
- BETWEEN THE SAME PARTIES ON THE SAME CAUSE OF ACTION
- THE DEFENDANT MAY FILE A PLEA IN ABATEMENT
- IF JUDGMENT ON THE PRIOR PENDING ACTION WOULD BE A COMPLETE BAR TO LITIGATION IN THE INSTANT CASE.
2
LEVELS NEEDED FOR THE TWO DIFFERENT TYPE OF ERRORS WHERE OBJECTION ON THE RECORD
- constitutional - error didn’t change jury’s position beyond reasonable doubt
- non-constitutional - jury was not substantially swayed by the error
3
CALIFORNIA INTERVENTION AS A MATTER OF RIGHT
- DISPOSITION MAY AS A PRACTICAL MATTER IMPAIR OR
- IMPEDED THAT PERSONALS ABIALITY TO PROTECT TO PROTECT THE INTEREST
- UNLESS PERSON’S INTEREST IS ADEQUATELY REPRESENTED BY EXISTING PARTY.
