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DSF Cal Bar > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Concurrent Client Conflicts (ABA)

A

Cannot proceed if one client’s interest is directly adverse to another’s, UNLESS

(1) Lawyer reasonably believes can give competent and diligent representation;
(2) Representation not prohibited by law;
(3) Clients not asserting claims against each other in same litigation;
(4) All clients give informed written consent

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2
Q

Third Party - Current Client Conflicts

A

Cannot proceed if there is a significant risk that representation materially limited by lawyer’s responsibility to any third party, UNLESS

(1) Lawyer reasonably believes can give competent and diligent representation;
(2) Representation not prohibited by law; AND
(3) Informed written consent

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3
Q

Concurrent Client Conflicts (CA Rules)

A

Cannot proceed if an actual or potential conflict exists, UNLESS
(1) Informed written consent

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4
Q

Can one lawyer make ‘aggregate settlements’ on behalf of two or more clients in the same litigation?

A

Not without informed written consent

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5
Q

Can a lawyer enter into a business transaction with a client

A

Not unless

(1) Fair and reasonable terms;
(2) Fully disclosed in writing;
(3) Lawyer advises client in writing to seek independent counsel; and
(4) Client gives informed written consent to the essential terms.

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6
Q

Former government employee conflicts

A

Cannot work on the same or substantially related matter without the agency’s informed written consent.

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7
Q

Can a lawyer solicit a substantial gift from a client?

A

ABA: No
CA: Yes if fair and no undue influence

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8
Q

Can a lawyer draft an instrument with a gift from a client?

A

ABA: No
CA: Yes if fair and no undue influence

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9
Q

Can a lawyer acquire a proprietary interest in the cause of action or subject matter of litigation?

A

Not unless to

(1) secure a lien to secure lawyer’s fees or
(2) contract with a client for a reasonable contingency fee in a civil case.

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10
Q

Can a lawyer give advances to client?

A

ABA: Only for court costs and expenses in (1) contingency cases and (2) for indigent clients
CA: No exception for indigent clients, but may lend money after employment if client promises in writing to repay the loan.

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11
Q

When can lawyer accept compensation from third party?

A

(1) Client gives informed consent
(2) no interference with the lawyer’s independent professional judgment;
(3) Information related to representation remains confidential

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12
Q

Organizational Client: Duty to Report

A

If lawyer knows of action likely to result in substantial injury to the organization:

ABA: Refer to higher authority, urge reconsideration, then may reveal information externally

CA: Refer to higher authority, urge reconsideration, cannot reveal information absent threat to life or threat of physical injury

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13
Q

Can a lawyer and client agree to limit malpractice liability?

A

ABA: Yes, if advise client in writing to seek independent legal counselCA: Never

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14
Q

Duty of Loyalty, Defined

A

A lawyer owes a client a duty of loyalty, that is, a duty to put the interest of the client above all other interests (preserve independent professional judgment) and to avoid all conflicts of interest

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15
Q

Scope of Representation

A

Lawyer: Means (what questions to ask witnesses, how to frame arguments)Client: Ends (settle, plea, waive jury trial, testify)

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16
Q

Imputed Disqualification

A

When one lawyer in firm is disqualified, all are, unless:

(1) lawyer’s conflict is personal and does not present significant risk of materially limiting representation by other attorneys, OR
(2) the conflict is a former client conflict from the lawyer’s work at a prior firm, and the lawyer is screen and the former client notified, OR
(3) informed written consent.

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17
Q

Duty to Communicate

A

Must communicate regularly with client, inform client of decisions that affect informed consent and status of case

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18
Q

Duty of Confidentiality

A

ABA: All information related to representationCA: Client’s “secrets”

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19
Q

When is disclosure of conf info appropriate (ABA)?

A

(1) Express or implied consent
(2) Reasonably necessary to prevent or mitigate:Death or substantial bodily harm (mandatory),substantial financial injury reasonably certain to result from crime or fraud that used lawyer’s services.
(3) Secure legal advice re compliance with rules
(4) Establish a legal claim or defense btwn lawyer and client
(5) Comply with other law or court order

20
Q

When is disclosure of conf info appropriate (CA)?

A

(1) Express consent

2) After attempts to dissuade, reasonably necessary to prevent death or substantial bodily harm (discretionary

21
Q

When is a communication confidential?

A

(1) Intended to be confidential
(2) No third parties present or reckless speech
(3) Does not apply to physical evidence
(4) Holder can stop eavesdropper from revealing info.

22
Q

Exceptions to A-C Privilege

A

(1) Crime or fraud
(2) Dispute between lawyer and client
(3) Two or more parties consult on a matter of common interest, and later have a dispute
(4) : CA Only: Reasonably necessary to divulge info to prevent a crime likely to result in death or substantial bodily harm.

23
Q

Contingency Fee Agreement: Requirements

A

(1) In writing
(2) Signed by (CA: Atty and) Client
(3) State methods to determine fee
(4) State methods to pay court costs
(5) (CA: State that fee is negotiable)
NO Contingency fee for domestic relations if promote divorce (ABA and CA) or criminal case (just ABA)

24
Q

Division of fees btwn lawyers: Requirements

A

(1) Client consent in writing
(2) Division proportionate to services
(3) Total fee reasonable (CA: Not unconscionable)

25
Q

Division of fees btwn lawyer and non-lawyer: Requirements

A

NEVER ALLOWED

26
Q

Duty to charge a reasonable fee (ABA) or not unconscionable fee (CA)

A

ABA is reasonable fee, CA is “not unconscionable”.
Factors:Time limitations imposed by circumstances
Experience of lawyer
Nature and length of relationship w client
Customary fee in locality
Amount involved and results obtained
Whether fee is fixed or contingent

27
Q

Contents of fee agreement

A

(1) How fee is calculated
(2) General nature of legal services
(3) Responsibilities of lawyer and client

28
Q

Agreements over $1000: Writing Required?

A

Yes in CA, unless:

(1) Client is a corporation
(2) Past practice
(3) Written waiver by client
(4) Emergency

29
Q

Duty of Competence and Care

A

Lawyer must represent client with degree of knowledge, skill, thoroughness and preparation reasonably necessary

30
Q

Safekeeping property

A

Lawyer must hold all client property separately and keep accounting records for five years

31
Q

Sex with clients

A

ABA: Not unless consensual relationship predates representation.CA: OK if no coercion or undue influence

32
Q

Mandatory withdrawal

A

(1) Representation will result in rules violation
(2) Lawyer’s mental or physical condition materially impairs representation
(3) Lawyer is discharged
(4) Lawyer knows/reasonably should know action is without probable cause or for harassment or malice

33
Q

Permissive withdrawal (CA and ABA)

A

CA: (1) C’s claim not supported under existing law or good faith argument to modify law;

(2) C pursues or insists L pursue an illegal course of conduct;
(3) C insists L behave against L’s judgment;
(4) Client substantially fails to meet obligations, after reasonable warning;
(5) C makes representation unreasonably difficult.

ABA: Add:

(6) No harm to C;
(7) L reasonably believes C’s actions are criminal/fraudulent/repugnant;
(8) C used L’s services to perpetrate a crime or fraud;
(9) Representation causes unreasonable financial burden to L.

34
Q

Duty to client upon permissive withdrawal

A

Give reasonable notice
Return all papers and property
Return unearned fees

35
Q

Advertising Requirements

A

(1) Name and address of at least one lawyer
(2) Labeled “Advertising Material”
(3) No claims of specialization except if certified by CA bar
(4) Retain a copy for two years

36
Q

Duty of fairness: to whom owed

A

Opposing counsel, third parties, the court

37
Q

Partnership with non-lawyer: OK?

A

Nope. No partnership or association authorized to practice law w a non-lawyer.

38
Q

Duty to report known ethical violations

A

ABA: Mandatory
CA: Permissive

39
Q

Duty to protect integrity of profession

A

No criminal conductNo frivolous claimsNo bringing case to harass or maliciously injure personNo threatening to bring crim/admin/disciplinary charges to gain unfair advantage

40
Q

When is in-person or telephone solicitation of clients okay?

A

Solicitation of prospective clients in person, by live telephone, or by real-time electronic contact is prohibited when a significant motive for the lawyer’s action is the lawyer’s pecuniary gain, unless the person contacted is a lawyer or has a family, close personal, or prior professional relationship with the soliciting lawyer.

41
Q

When are payments to witnesses OK?

A

Except when prohibited by law, a lawyer may advance, guarantee, or acquiesce in the payment of

(i) expenses reasonably incurred by a witness in attending or testifying,
(ii) reasonable compensation to a witness for loss of time in attending or testifying, or
(iii) a reasonable fee for the professional services of an expert witness.

42
Q

Does a lawyer’s reasonable belief that evidence is false preclude presentation of that evidence?

A

No, standard is actual knowledge.

43
Q

CA rule on referral fees

A

OK if to recognized referral Org or if meet the requirements for fee splitting:

(1) Written consent by the client after full disclosure;
(2) Total fee not increased solely by reason of division of the fee;
(3) Total fee not unconscionable.

44
Q

Trial Publicity

A

A lawyer who is participating or has participated in the investigation or litigation of a matter is not permitted to 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 an adjudicative proceeding in the matter.
An exception to this rule is that a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity that was not initiated by the lawyer or the client. The statement must be limited to such information as is necessary to mitigate the recent adverse publicity.

45
Q

Requesting that a Person Not Give Relevant Information to Another Party

A

A lawyer must not request a person other than a client to refrain from voluntarily giving relevant information to another party, unless (i) the person is a relative or an employee or other agent of the client and (ii) the lawyer reasonably believes that the person’s interests will not be adversely affected.

46
Q

Duty to Not Offer False Evidence

A

A lawyer is prohibited from knowingly offering false evidence and may refuse to admit evidence that she reasonably believes is false. The term “knows” means actual knowledge of the fact, which may be inferred from circumstances.
California requires that a lawyer employ only those means consistent with truth and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

47
Q

Special Prosecutor Responsibilities

A

The prosecutor is not only an advocate, but also a minister of justice. The prosecutor’s responsibilities include–
the obligation to lay charges only when they are supported by probable cause,
to see that the defendant is accorded all of his constitutional due process rights,
to seek a guilty verdict based on the evidence and a showing of proof beyond a reasonable doubt, and
to take special precautions to prevent and reverse the conviction of innocent defendants.

DSF Cal Bar (12 decks)

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