Professional Responsibility

Question 1

Advertising - definition

Answer 1

A general attempt to obtain business

Question 2

Advertising - CA prohibits

Answer 2

A guarantee or warranty of outcome;
Words or symbols that suggest quick cash or quick settlement;
An impersonation of a lawyer or client without disclosure;
A dramatization without disclosure;
A contingent fee offer that doesn’t warn that a client who loses must still pay costs

Question 3

Advertising - CA presumes communication is false if:

Answer 3

Delivered to potential client who is in the hospital;
Mailing isn’t clearly labeled as advertising material;
Communications containing testimonials or endorsements without a disclaimer

Question 4

Solicitation - definition

Answer 4

Direct contact seeking fee paying work from people other than relatives, current clients, or former clients

Question 5

Targeted Direct Mail Solicitation

Answer 5

May send truthful, non-deceptive communications to prospective clients known to need specific legal services, absent knowledge that perspective client doesn’t want to receive communications
Must be labeled as advertising material

Question 6

Buying Clients - ABA

Answer 6

No financial assistance to a client in connection with litigation except lawyer can advance court costs and pay indigent client’s court costs and expenses

Question 7

Buying Clients - CA

Answer 7

No promise to pay debts; permits loans for any purpose after lawyer is hired if client promises in writing to repay
Applies in all contexts

Question 8

Contingent Fees

Answer 8

Must be in writing and state how fee will be calculated, what expenses will be deducted, gross or net recovery, and what fees client pays regardless of outcome

ABA - prohibited in criminal and domestic cases

CA - allowed in domestic relations cases if they don’t encourage divorce

Question 9

Can you split fees with a non-lawyer?

Answer 9

No

Question 10

Fee Splitting - ABA

Answer 10

Client consents, no increase to client’s costs, and amount is proportional to work done or both attorneys assume joint legal and ethical responsibility

Question 11

Fee Splitting - CA

Answer 11

Client informed written consent and no increase in cost

Referral fees allowed

Question 12

Conflict - definition

Answer 12

Arises where interests of attorney or 3rd party, including a current or former client, might materially limit or adversely affect attorney’s decisions or ability to represent client

Question 13

Waiving the Conflict - ABA

Answer 13

Lawyer reasonably believes he can represent; not prohibited by law; clients’ claims don’t involve direct assertion of a claim by one against the other; and lawyer obtains informed written consent

Question 14

Waiving the Conflict - CA

Answer 14

Informed written consent if there’s a potential or actual conflict between clients on the same matter

Written disclosure if conflict is with lawyer’s personal/business interests

Question 15

Concurrent Conflict

Answer 15

Between or among attorney and client, current clients, and/or former clients

Question 16

Imputed Conflict

Answer 16

If lawyer faces a conflict of interest, lawyer’s conflict is imputed to all the other lawyers in the firm

Question 17

Imputed Conflict - Former Government Attorney

Answer 17

ABA - lawyer prohibited from representing a client in connection with a matter in which lawyer participated personally and substantially as a gov’t officer or employee, unless appropriate gov’t agency gives informed written consent

CA - lawyer who participated in the prosecution of a criminal case can’t participate in the defense

Question 18

Imputed Conflict - Other Exceptions

Answer 18

Conflict is a purely personal interest

Conflict is caused by a close family relationship

Conflict results from rule on sexual relationship

Screening - conflict not imputed if disqualified lawyer is timely screened and receives no part of the fee, written notice to affected former client and given opportunity to object/challenge, and certifications of compliance regularly provided to client

Question 19

Financial Interests Confict

Answer 19

Transaction must be fair and reasonable to client; fully disclosed and transmitted in writing to client; client is informed in writing to seek the advice of legal counsel and must be given reasonable opportunity to do so; and client understands lawyer’s role in the transaction

Question 20

Agreement Limiting Liability for Past Malpractice

Answer 20

Lawyer should withdraw or advise client to seek independent counsel, and fully disclose terms and effect in writing

Question 21

Agreement Prospectively Limiting Liability

Answer 21

CA - prohibited

ABA - allowed if client is represented by independent counsel

Question 22

Sexual Relations with Client

Answer 22

ABA - prohibited unless preexisting consensual relationship

CA - allowed but no coercion or undue influence, no demand as condition of representation, can’t represent client incompetently due to relation

Question 23

Conflict Representing Organizations

Answer 23

Attorney represents the organization, not the employees

Attorney must ensure employee knows that there is no confidentiality

Question 24

Solicitation of Gifts - ABA

Answer 24

Must not solicit a substantial gift or prepare an instrument giving lawyer, or lawyer’s relations, any substantial gift from a client, except when client is related to the donee

Question 25

Solicitation of Gifts - CA

Answer 25

Must not induce gifts

Rebuttable presumption of undue influence if attorney prepares the instrument of the gift

Question 26

Media Rights - ABA

Answer 26

Expressly prohibits getting media rights until after the conclusion of representation

Question 27

Media Rights - CA

Answer 27

Trial judge must ensure D understands the conflict

Question 28

Client Property and Records

Answer 28

Must keep client’s and lawyer’s property separate

Must keep record of clients property

Must deliver client entitled property

CA - must preserve record for 5 years after distribution

Question 29

Duty of Competence

Answer 29

Duty to have the knowledge, skill, preparation, and thoroughness necessary to undertake effective representation of the client; and to supervise employees

Learn the necessary knowledge; associate an experienced attorney; faces an emergency situation; or don’t take the case

CA - in addition, subject to discipline for intentionally, recklessly, or repeatedly rendering legal services incompetently

Question 30

Duty of Care and Dilligence

Answer 30

Duty to pursue mater diligently, and with the skill and attention one would give to one’s own personal matter

Question 31

Duty of Communication

Answer 31

Must keep client reasonably informed about the status of the matter and promptly comply with reasonable requests for info

Communicate all plea offers and reasonable settlement offers

CA - in addition, must disclose lack of malpractice insurance in writing

Question 32

Duty of Confidentiality

Answer 32

Duty to maintain a client’s secrets - any info, however learned

Duty never goes away

Question 33

Exceptions to Confidentiality - ABA

Answer 33

Consent or implied authority
Prevent death or GBI
Prevent/rectify serious financial loss
Final court order
Fee collection litigation
Ethics defense
Malpractice defense

Question 34

Exceptions to Confidentiality - CA

Answer 34

Prevent death or GBI
Final court order
Fee collection litigation
Ethics defense
Malpractice defense
Criminal defense

Question 35

Unauthorized Practice of Law

Answer 35

Lawyer may not permit or assist someone in the unauthorized practice of law

Practice of law includes those things that require a lawyer’s professional judgment

Question 36

Duty of Fair Representation - A lawyer cannot:

Answer 36

Improperly contact a juror or judge;
Improperly publicize a trial – can’t substantially prejudice an adjudicate proceeding;
Obstruct access to evidence;
Falsify evidence;
Spoliate evidence;
Make frivolous discovery requests/objections;
Fail to return inadvertently disclosed documents;
Assert personal knowledge of facts;
Contact party represented by counsel;
Make false/misleading statements to court, opposing counsel, or opposing party;
Fail to disclose fact necessary to prevent criminal act/fraud;
Allude to matters unsupported by admissible evidence;
CA – threaten to bring criminal proceeding to gain advantage in a civil case

Question 37

Criminal Defendants Who Testify

Answer 37

Must allow D to testify even if lawyer reasonably believes the testimony is false

Can’t use anything D falsely said in closing argument

ABA - must rectify any false statements

CA - withdraw without directly saying why

Question 38

Duties of a Public Prosecutor

Answer 38

Refrain from prosecuting a charge P knows isn’t supported by probable cause;
Reasonable efforts to ensure that D has been advised of the right to counsel;
Not seek to obtain a waiver of trial rights from an unrepresented D;
Timely disclose exculpatory evidence and mitigating circumstances;
Promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted D didn’t commit the subject offense;
Prevent investigators and others from pretrial publicity that P couldn’t make;
Refrain from making public statements that have a substantial likelihood of heightening public condemnation of the accused;
Refrain from subpoenaing an attorney in a criminal proceeding;
Seek to remedy a conviction when P knows of clear and convincing evidence that D didn’t commit the offense

Question 39

Duty to the Public - ABA

Answer 39

Lawyer must report rule violation by another attorney, unless confidential/privileged

Question 40

Duty to the Public - CA

Answer 40

Not required to report other attorneys. Required to self-report to the State Bar for convictions, felony charges, civil liability, sanctions > $1,000, and more than 3 malpractice suits in 12 months

Question 41

Mandatory Withdrawal

Answer 41

Representation will result in violation of Rules or other law

Lawyer’s physical or mental condition materially impairs ability to represent

Lawyer is discharged

Question 42

Permissive Withdrawal

Answer 42

Withdrawal can be accomplished without material adverse effect on client’s interests (not in CA);
Client persists in a course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent;
Client has used lawyer’s services to perpetrate a crime or fraud (not in CA);
Client insists on taking action that lawyer considers repugnant or with which lawyer has a fundamental disagreement;
Client fails to pay their bill and has been given reasonable warning that lawyer will withdraw unless the obligation is fulfilled;
Representation will result in an unreasonable financial burden on lawyer (not in CA);
Other good cause for withdrawal exists