Professional Responsibility

Question 1

Professional Responsibility - Exam Approach

Answer 1

1. Review a mental checklist of a lawyer’s duties:a. Duties to the Client
   b. Duties Third Parties
   c. Duties to the Court
   d. Duties to the Profession
2. Approach each incident or event chronologically, with each incident having it’s own heading
3. Discuss both the ABA Rules and the California Rules WHETHER OR NOT the call of the questions specifically requests it.
4. Generally assume an ethical violation in the absence of facts to the contrary.

Question 2

Advertising vs. Solicitation - Generally

Answer 2

Advertising consists of a general attempt to obtain business

Solicitation involves directed contact with a particular person or persons

Question 3

Advertising - Misleading Ads, ABA Rules

Answer 3

With an advertisement, determine whether it contains a material misrepresentation of a law or fact, or omits information necessary to make the communication as a whole not misleading.

Untruthful, false or misleading advertising may be prohibited without violating the First Amendment.

Look for promises that may not seem provable, and then indicate that. If they are not true, this is an ethical violation.

Question 4

Advertising - Misleading Ads, CA Rules

Answer 4

A California lawyer is prohibited by statute from making advertisements that contain any of the following:

1. A guarantee or warranty of the outcome of a case;
2. Words or symbols that suggest quick cash or a quick settlement;
3. An impersonation of a lawyer or client without disclosing that it is an impersonation;
4. A dramatization of an accident or other event without disclosing that it is a dramatization; and
5. A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that is the arrangement.

Question 5

Advertising - Presumption of Falsity, CA Rules

Answer 5

Under the CA RPC, the following lawyer communications are presumed to be false or misleading unless the lawyer can prove otherwise:

1. Communications delivered to a potential client who is in the hospital or who is suffering from physical or mental stress;
2. Mailings that seek fee-paying work and that are not clearly labeled as advertising material; and
3. Communications containing testimonials or endorsements, without a disclaimer that the testimonials or endorsements are not a promise about the results in the potential client’s case.

Question 6

Solicitations - Generally

Answer 6

Solicitations are more direct and personal than ads.

A lawyer must not seek fee-paying work by initiating personal or telephone contact with a prospective client who is not a former client, current client, or someone with whom the lawyer has a personal, professional, or family relationship.

Nor may a lawyer use a “capper” to initiate such personal contact (e.g. face to face contact, flowers sent to accident victims’ hospital room).

Question 7

Solicitations - Pro Bono Legal Service

Answer 7

Solicitations offering pro bono legal service, made without hope of pecuniary gain, are permitted.

Question 8

Advertisements - Specific Legal Problems

Answer 8

Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, non-deceptive letters to persons known to face a specific legal problem.

Under both the ABA Rules and the CA RPC, these communications with prospective clients must still be labeled as “advertising material.”

If the facts do not state that they were labeled, as “advertising material,” assume they were not.

Question 9

Duty to Make Reasonable Fee Arrangements - Generally

Answer 9

The ABA Rules provide that when the lawyer has not regularly represented the client, the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation.

Question 10

Buying Clients - ABA Rules

Answer 10

The ABA Rules provide that a lawyer must not provide financial assistance to a client in connection with litigation, except that:

1. A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and
2. A lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.

The ABA Rules implicitly prohibit buying a client with promises of financial assistance.

Question 11

Buying Clients - CA Rules

Answer 11

The CA RPC also limits financial assistance, but it:

1. applies in all contexts, not just in litigation;
2. it explicitly prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business debts; and
3. unlike the ABA Rules, permits a lawyer to lend money to their client for any purpose after the lawyer is hired if the client gives her a written promise to repay the loan.

But even if financial assistance is permitted, it creates a conflict between the lawyer’s and client’s financial interests that must be discussed.

Question 12

Reasonableness of Fees - Generally

Answer 12

Under the ABA Rules, there are a number of factors in determining a reasonable fee, such as:

1. The difficulty of the matter;
2. The prevailing fees in the locale;
3. How much time and business a lawyer must give up to take the case.

The CA RPC rule is similar to the ABA Rule in that it prohibits “unconscionable” fees—and the factors are similar.

Question 13

Contingency Fees - Generally

Answer 13

A contingent fee agreement must be in writing, and must state:

1. How the fee is to be calculated;
2. What expenses are to be deducted from the recovery;
3. Whether the contingency fee is on the gross or net recovery; and
4. What expenses the client must pay, whether or not they win the case.

A contingent fee offer must warn a client that they must still pay costs even if they lose the case.

Question 14

Contingency Fees - ABA Rules

Answer 14

Under the ABA Rules, contingency fees are prohibited in domestic relations matters and in the representation of defendants in criminal cases.

Question 15

Contingency Fees - CA Rules

Answer 15

In California, contingency fees are permitted in domestic relations matters so long as they do not encourage divorce.

Thus, if the client is undecided about getting a divorce, a contingent fee is more likely to be barred than if a client comes to the attorney having already decided to obtain a divorce.

Question 16

Fee Splitting - Generally

Answer 16

Under both the ABA and CA rules, a lawyer MAY NOT split a fee with a non-lawyer.

Question 17

Fee Splitting - ABA Rules

Answer 17

Under the ABA Rules, a lawyer may split their fee with another attorney, as long as:

1. They obtain their client’s consent,
2. It does not increase what the fee otherwise would have been, and either
3. The fee is proportional to the work done, OR
4. Each lawyer assumes joint responsibility for the representation.

Question 18

Fee Splitting - CA Rules

Answer 18

In California, to split a fee with another attorney, the lawyer must obtain her client’s informed written consent.

However, there is no proportionality rule, so that any fee split with an attorney is permitted if it does not increase what the fee otherwise would have been.

Question 19

Conflicts of Interest - Generally

Answer 19

A conflict of interest exists when:

1. The representation of a client will be directly adverse to the interests of another client; or
2. There is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests, or by the interests of another client, former client, or third person.

Question 20

Conflicts of Interest - Actual vs. Potential Analysis

Answer 20

A conflict of interest can be actual or potential.

The proper analysis is to discuss all potential conflicts of interest that are presented by the facts, each with a heading indicating the act or event causing the potential conflict.

Then, determine if any of these potential conflicts ripen into actual conflicts, and discuss the actual conflict. Be specific, using the facts provided.

Question 21

Conflicts of Interest - Continuing Representation, ABA Rules

Answer 21

Generally, the ABA Rules permit continued representation, if:

1. The lawyer reasonably believes he can competently and diligently represent each client;
2. The representation is not prohibited by law; and
3. The clients’ claims do not involve the direct assertion of a claim by one client against another; and
4. The lawyer obtains the clients’ informed, written consents.

Question 22

Conflicts of Interest - Continuing Representation, CA Rules

Answer 22

The CA Rules do not require reasonable belief; but they require informed, written consent if there is a potential conflict between clients on the same matter, of if a conflict develops during the course of the representation.

If the conflict is between the client and the attorney’s personal or financial interests, CA only requires written disclosure of the conflict.

The CA rules have also been interpreted to require a prompt disclosure to the client of any facts giving rise to any legal malpractice claim against the lawyer, since this represents a conflict with the attorney’s interests.

Question 23

Conflicts in Representing Organizations - Generally

Answer 23

There are three kinds of conflicts in representing organizations:

1. A conflict between the organization and members;
2. The organization may seek to direct the representation; and
3. Confidentiality issues.

Question 24

Conflicts in Representing Organizations - Representation of Employees

Answer 24

Where an attorney represents an organization, he does not represent its employees.

Any employee who seeks to consult with the attorney must be advised by the attorney that they are not his client, and as a result there will be no confidentiality.

If an attorney fails to advise the employee, and the employee reasonably believes the attorney is representing him, the attorney will owe the duties of loyalty and confidentiality, to that employee.

This creates serious conflicts with the attorney’s duties of loyalty and confidentiality to the organization.

Question 25

Agreements Limiting Malpractice - Generally

Answer 25

If a lawyer contemplates entering into an agreement limiting liability for past malpractice, the lawyer should either withdraw, or:

1. Advise the client in writing to seek independent counsel and give the client an opportunity to do so;
2. Advise the client that the lawyer is not advising the client as to the settlement; and
3. Fully disclose in writing the terms and effect of such a settlement agreement that limits the lawyer’s liability to the client.

Question 26

Agreements Limiting Malpractice - ABA Rules

Answer 26

If a lawyer seeks to limit liability prospectively, such as through a release, the ABA requires that the client be represented by independent counsel.

If the agreement is between outside and inside counsel for a corporation, any such agreement requires that the corporation first be advised by another outside lawyer.

Question 27

Agreements Limiting Malpractice - CA Rules

Answer 27

In CA, attempting to prospectively limit liability is absolutely prohibited.

Question 28

Imputed Conflicts - Generally

Answer 28

Generally, if a lawyer faces a conflict of interest, no lawyer in that lawyer’s firm may represent the client; i.e., the lawyer’s conflict is imputed to all the other lawyers in the firm.

“Firm” means not only a private law firm, but also the lawyers who practice together in a corporate law department, a governmental agency’s law office, etc.

Question 29

Imputed Conflicts - Exceptions

Answer 29

This general rule of imputed conflicts does not apply to:

1. Conflicts caused by former and current government lawyers;
2. Conflicts caused by a purely personal interest of the conflicted lawyer that will not inhibit other lawyers in the firm from representing the client competently and diligently;
3. Conflicts caused by the conflicted lawyer’s close family relationship with another lawyer who is representing a different client in the matter; and
4. Conflicts caused by the conflicted lawyer’s sexual relationship with the client.

Question 30

Imputed Conflicts - ABA Exception for Former Clients

Answer 30

Under the ABA Rules, the conflict will not be imputed if the conflict is with a former client and:

1. The disqualified lawyer is timely screened for any participation in, or access to, the matter, along with periodic reminders of the screening;
2. The disqualified lawyer may not receive any part of the fee for the matter, other than a salary or partnership income established by prior independent agreement;
3. Written notice is promptly given to any affected former client, including notice of the client’s right to object and have the issue heard by a tribunal; and
4. Certifications of compliance are regularly provided to the former client.

Question 31

Imputed Conflicts - Silence of CA Rules

Answer 31

Because the CA Rules are silent about imputed conflicts of interest, a California lawyer is not subject to discipline for an imputed conflict.

Follow the general rule for the purpose of granting motions disqualifying a lawyer from handling a litigated matter, with screening procedures as a permissible solution in certain cases.

Question 32

Imputed Conflicts - Government Attorneys, Generally

Answer 32

The ABA Rules prohibit a lawyer from representing a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed, written consent.

California does not have a counterpart, except that a lawyer who has participated on the prosecution side of a criminal case is prohibited from participating on the defense side.

Question 33

Imputed Conflicts - Government Attorney Hired by a Firm

Answer 33

If a firm that hires a former government attorney who participated personally and substantially in a matter, the conflict is not necessarily imputed to the firm, assuming the law firm is large enough. If the conditions of a screening procedure similar to other conflicts are met:

a. the disqualified lawyer is screened from any participation in the matter;
b. the disqualified lawyer does not share in any part of the fee earned (exclusive of a salary or partnership share established by prior independent agreement); and
c. the government agency is notified of the screening arrangement.

The CA rules are the same.

These rules also apply to a former government employee who simply learns confidential government information about a person while working as a government officer or employee.

Question 34

Financial Conflicts Between Attorney and Client - Generally

Answer 34

In most situations involving conflicts of financial interests, the rules call either for withdrawal or informed, written consent. Whenever a financial transaction is involved, the following is required:

1. The transaction and terms must be fair and reasonable to the client and fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client;
2. The client must be informed in writing of the desirability of obtaining the advice of independent legal counsel to review the terms of the transaction and given a reasonable opportunity to do so; and
3. The client understands the lawyer’s role in the transaction (as the lender with a “security interest” in the judgment, and the client gives informed consent in writing.

Question 35

Attorney Gifts - ABA Rule

Answer 35

Under the ABA Rules, a lawyer must not:

1. Solicit a substantial gift from a client; or
2. Prepare an instrument giving the lawyer, or a person related to the lawyer, any substantial gift.

However, the attorney is permitted to prepare an instrument when the client is related to the donee.

Question 36

Attorney Gifts - CA Rule

Answer 36

In CA, a lawyer is prohibited from inducing a gift, but the lawyer is not prohibited from preparing the instrument.

However, where the attorney prepares the instrument containing a gift to the attorney, it creates a rebuttable presumption of undue influence that invalidates the gift unless the presumption is overcome.

Question 37

Media Rights - ABA Rule

Answer 37

Prior to the conclusion of representation of a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights relating to the representation.

Question 38

Media Rights - CA Rule

Answer 38

CA does not prohibit the negotiation of media rights prior to the conclusion of representation.

However, CA case law recognizes that these agreements create a serious conflict of interest between the lawyer and the client.

Question 39

Sexual Relations with Clients - ABA Rule

Answer 39

A lawyer must not have a sexual relationship with a client, unless the lawyer and client had a consensual sexual relationship before they became lawyer and client.

Even if there was a preexisting consensual sexual relationship, the lawyer should make sure that his ability to represent the client will not be affected by the relationship.

A lawyer who represents an organization must not have a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters.

Question 40

Sexual Relations with Clients - CA Rule

Answer 40

The current California rule does not prohibit a lawyer from entering into a consensual sexual relationship with a client during the course of representation.

The current California rule prohibits a lawyer from:

1. Demanding sexual relations with a client as a condition of professional representation,
2. Entering into sexual relations with a client by coercion or undue influence, or
3. Representing a client incompetently because of a sexual relationship with the client.

Question 41

Client Property and Records - Generally

Answer 41

A lawyer must hold property of clients or third persons separate from the lawyer’s own property, which means the lawyer must:

1. Keep client funds in a client trust account;
2. Keep records of client funds and other property;
3. Keep the client informed, and deliver funds or other property to the client or a third person entitled to receive the funds or property; and
4. Keep the disputed portion of any client funds or property separate. Once there is no dispute as to where funds go, undisputed funds must be paid out.

Question 42

Client Property and Records - CA Rule

Answer 42

In CA, a lawyer must preserve records of client funds or other property for five years after the money or property is distributed.

Question 43

Duty of Competence - Generally

Answer 43

The duty of competence includes the duty to have the knowledge, skill, preparation and thoroughness necessary to undertake effective representation of the client.

Accordingly, a lawyer is subject to discipline for neglecting a legal matter, failing to prepare a matter, and taking a matter that the lawyer knows they are not competent to handle.

The duty of competence also includes the duty to supervise employees.

Question 44

Duty of Competence - Reasonable Time to Learn

Answer 44

If the lawyer doesn’t possess adequate knowledge of the legal principals at issue, they can still undertake representation if:

1. They can learn the necessary knowledge within a reasonable time that does not cause the client undue delay, or
2. They work with an experienced attorney on the representation, or
3. The attorney faces an emergency situation.

Question 45

Duty of Care and Diligence - Generally

Answer 45

The duty of care is the duty to pursue a matter diligently and with the skill and attention that one would give to one’s own personal matters.

This includes a duty to research matters thoroughly, to investigate facts, and to take the time necessary to adequately prepare a matter for a client.

It also means an attorney cannot withhold legal work to force payment of a bill. If nonpayment is an issue, then the attorney must file a motion to withdraw and give the required amount of notice to the client.

Question 46

Duty of Communication - Generally

Answer 46

A lawyer must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

A lawyer must explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

A lawyer must communicate all plea offers to a criminal client, and all reasonable settlement offers to a client in a civil matter.

Use of a translator is permitted, but using a joint client as a translator, can be problematic as it can pose confidentiality, communication, and conflict issues.

In addition, California requires that attorneys who know, or reasonably should know, that they do not have professional liability insurance must disclose that fact in writing to any client whenever it is reasonably foreseeable that the total amount of your legal representation of that client will exceed four hours. The rule does not apply to government lawyers or in-house counsel, or when a lawyer is providing legal services in an emergency.

Question 47

Duty of Communication - CA Rule

Answer 47

In addition, CA requires that attorneys who know, or reasonably should know, that they do not have professional liability insurance must disclose that fact in writing to any client whenever it is reasonably foreseeable that the total amount of legal representation of that client will exceed four hours.

The rule does not apply to government lawyers or in-house counsel, or when a lawyer is providing legal services in an emergency.

Question 48

Scope of Representation - Generally

Answer 48

The scope of an attorney’s representation may be defined and limited by the attorney-client agreement.

In the absence of an agreement to the contrary, a lawyer should pursue the client’s objectives in all reasonably available legal ways.

A lawyer must not advise or assist a client to commit a crime or fraud, but they may discuss the legal consequences of a proposed course of action with the client.

Question 49

Duty of Confidentiality - Generally

Answer 49

The duty of confidentiality includes both the attorney-client privilege and the duty to the client to keep their confidences and secrets.

The duty of confidentiality relates to all information regardless of whether the client deems it confidential, how it was acquired, or whether revealing it might embarrass the client.

Question 50

Attorney-Client Privilege - Generally

Answer 50

An attorney cannot be compelled to disclose confidential communications with the client.

Issues concerning the privilege include its scope, duration, and exceptions.

Question 51

Attorney-Client Privilege - Scope

Answer 51

Scope means that the privilege extends to those persons necessary to the attorney’s representation of the client, and to conversations when a client is seeking to decide whether to employ the attorney.

Question 52

Attorney-Client Privilege - Duration

Answer 52

Duration means that the privilege survives the termination of the relationship, and death of the client.

Question 53

Attorney-Client Privilege - Exceptions

Answer 53

The three major exceptions to the privilege are:

1. The crime-fraud exception (client seeks to employ attorney to assist in committing a crime or fraud);
2. Issues relevant to a breach of the attorney-client relationship (malpractice suit or suit for fees); and
3. Civil litigation between two former joint clients of the attorney.

Question 54

Duty of Confidentiality - Exceptions

Answer 54

The major exceptions under the ABA Rules, which generally permit, but do not require disclosure, are:

1. Consent or implied authority to disclose;
2. Disclosure to prevent future death or serious bodily harm;
3. Disclosure to prevent or rectify substantial financial loss;
4. Disclosure required by final court orders;
5. Disclosure necessary to collect a fee or protect the lawyer from a criminal charge or civil litigation.

Question 55

Duty to Not Aid the Unauthorized Practice of Law - Generally

Answer 55

A lawyer may not aid or assist someone in the unauthorized practice of law, or permit someone to engage in such unauthorized practice.

The unauthorized practice of law includes those things that involve using the professional judgment of a lawyer, such as fact investigation or witness interviews.

Question 56

Duty of Fair Representation - Generally

Answer 56

Under the duty of fair representation, a lawyer may not:

1. Improperly contact a juror or the judge; or
2. Publicize the trial in a way that a lawyer knows, or should know, will substantially prejudice an adjudicative proceeding.

A lawyer owes fairness to opposing counsel and parties.

A lawyer who receives incriminating evidence must turn it over without disclosing the source—this DOES NOT violate the duty of confidentiality.

In addition to the above Rules, the California Rules (but not the ABA Rules) forbid a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute—an issue that has been tested on the essay exam. Doing so may also constitute the crime of extortion.

Question 57

Duty of Fair Representation - Opposing Counsel

Answer 57

A lawyer owes fairness to opposing counsel and parties.

A lawyer who receives incriminating evidence must turn it over without disclosing the source. This does not violate the duty of confidentiality.

In addition to the above, the CA forbids a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute.

Question 58

Criminal Defendants Who Testify Falsely - Generally

Answer 58

A criminal defendant has a constitutional right to testify, so a lawyer must allow the defendant to testify even if the lawyer reasonably believes that the testimony will be false.

However, if the lawyer knows that the defendant’s testimony will be false, the lawyer must try to convince the defendant not to testify falsely. If that fails, the lawyer may ask the tribunal for permission to withdraw.

As a last resort, under the ABA Rules, the lawyer must disclose information to the tribunal to set the matter straight, even if the information is privileged or confidential.

Question 59

Criminal Defendants Who Testify Falsely - CA Rule

Answer 59

If a CA lawyer is presented with a criminal defendant who insists on offering false testimony, the lawyer must first try to persuade the defendant not to testify falsely.

If that fails, the lawyer may ask the tribunal for permission to withdraw. If that fails, the lawyer may call the defendant as a witness and question him in the ordinary manner up to the point at which the lawyer knows the defendant will testify falsely. From that point on, the lawyer may allow the defendant to testify in a narrative fashion.

The lawyer may not use any false testimony in his closing argument, nor disclose privileged or confidential information to the tribunal to set the matter straight.

Question 60

Contact with a Represented Party - Generally

Answer 60

In the representation of a client, a lawyer must not communicate about the matter with a person he knows to be represented by counsel in the matter unless the person’s counsel has granted permission or he is otherwise authorized by law or court order to make the direct communication.

Question 61

Contact with a Represented Party - Employees of Organizations

Answer 61

A lawyer must get the consent of the organization’s counsel before communicating with a constituent of the organization:

1. Who supervises or regularly consults with the organization’s lawyer about the matter;
2. Who has authority to obligate the organization with respect to the matter; or
3. Whose conduct in the matter may be imputed to the organization.

Question 62

Nine Affirmative Duties of a Criminal Prosecutor - Generally

Answer 62

There are nine affirmative duties of a prosecutor in a criminal case:

1. refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;
2. make reasonable efforts to ensure that the accused has been advised of the right to and procedure for obtaining counsel, and has been given the opportunity to do so;
3. not seek to obtain from an unrepresented accused a waiver of important pretrial rights;
4. make timely disclosure to the defense of exculpatory evidence and mitigating circumstances;
5. exercise reasonable care to prevent investigators and other law enforcement personnel from engaging in extrajudicial statements (pretrial publicity) that the prosecutor would be barred from making;
6. refrain from subpoenaing an attorney in a criminal proceeding to give evidence about a client unless the prosecutor reasonably believes that the information is not protected by privilege, the evidence is essential to an ongoing investigation or prosecution, and there is no feasible alternative;
7. refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused, except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and serve a legitimate law enforcement purpose;
8. promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the subject offense; and
9. seek to remedy a conviction when the prosecutor knows of clear and convincing evidence that a defendant was convicted for an offense defendant did not commit.

Question 63

Duty to the Public - Generally

Answer 63

The commission by a lawyer of fraud, a crime, or other serious immoral act is independently a breach of the duty to the public.

Where an attorney is convicted of a crime involving moral turpitude, the attorney is placed on interim suspension until the conviction becomes final, at which point final disposition of the attorney’s licensure is determined.

Question 64

Duty to the Public - ABA Rule

Answer 64

Under the ABA Rules, a lawyer who knows that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer’s honesty or fitness as a lawyer in other respects must inform the appropriate professional authority.

This rule does not require disclosure of privileged or confidential information.

Question 65

Duty to the Public - CA Rule

Answer 65

California has no rule that requires a lawyer to report misconduct by another lawyer or a judge. Instead, California lawyers are required to report themselves to the State Bar when:

1. Sued for malpractice three times in 12 months;
2. Found civilly liable for fraud, breach of fiduciary duty, or the like;
3. Sanctioned more than $1,000 (except for discovery sanctions);
4. Charged with a felony;
5. Convicted of certain serious crimes; or
6. Disciplined in another jurisdiction.

Question 66

Duty to Withdraw - Generally

Answer 66

The duty to withdraw involves both mandatory withdrawal and permissive withdrawal.

When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good cause for terminating the representation.

Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests.

Question 67

Duty to Withdraw - Mandatory Withdrawal

Answer 67

Withdrawal is mandatory or representation must be declined if:

1. The representation will result in violation of the RPC or other law;
2. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
3. The lawyer is discharged.

Question 68

Duty to Withdraw - Permissive Withdrawal

Answer 68

A lawyer may withdraw from representing a client if:

1. Withdrawal can be accomplished without material adverse effect on the interests of the client (but not in CA);
2. The client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;
3. The client has used the lawyer’s services to perpetrate a crime or fraud (but not in CA). In both ABA and CA, lawyer CANNOT disclose this fact;
4. The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
5. The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;
6. The representation will result in an unreasonable financial burden on the lawyer (but not in CA); or
7. Other good cause for withdrawal exists.