Professional Responsibility Flashcards
Advertising - definition
A general attempt to obtain business
Advertising - CA prohibits
1) A guarantee or warranty of outcome
2) Words or symbols that suggest quick cash or quick settlement
3) An impersonation of a lawyer or client without disclosure
4) A dramatization without disclosure
5) A contingent fee offer that doesn’t warn that a client who loses must still pay costs
Advertising - CA presumes communication is false if:
1) Delivered to potential client who is in the hospital or suffering from physical/mental stress
2) Mailing isn’t clearly labeled as advertising material
3) Communication contains testimonials or endorsements without a disclaimer
Solicitation - definition
Can’t use direct contact seeking fee paying work from people other than close relations, current clients, or former clients
Targeted Direct Mail Solicitation
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
Buying Clients - ABA
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
Buying Clients - CA
Can make loans to client in all contexts, after lawyer is hired, for any purpose with a written loan agreement, but can’t promise to pay a prospective client’s debts
Contingency Fees
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
Can you split fees with a non-lawyer?
No
Fee Splitting - ABA
Client consents, no increase in costs, and amount is proportional to work done or both attorneys assume joint responsibility
Fee Splitting - CA
Client’s informed written consent and no increase in costs
Referral fees allowed
Conflict - definition
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
Waiving the Conflict - ABA
1) Lawyer reasonably believes he can represent;
2) Not prohibited by law;
3) Clients’ claims don’t involve direct assertion of a claim by one against the other; and
4) Informed written consent
Waiving the Conflict - CA
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
Concurrent Conflict
Between or among attorney and client, current clients, and/or former clients
Imputed Conflict
Generally, a lawyer’s conflict of interest is imputed to all other lawyers in the firm
Imputed Conflict - Former Government Attorney
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
Imputed Conflict - Other Exceptions
1) Conflict is a purely personal interest
2) Conflict is caused by a close family relationship
3) Conflict results from rule on sexual relationship
4) 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
Financial Interests Confict
1) Transaction must be fair and reasonable to client;
2) Fully disclosed and transmitted in writing to client;
3) Client is informed in writing to seek the advice of legal counsel and must be given reasonable opportunity to do so; and
4) Client understands lawyer’s role in the transaction
Agreement Limiting Liability for Past Malpractice
Lawyer should withdraw or advise client to seek independent counsel, and fully disclose terms and effect in writing
Agreement Prospectively Limiting Liability
CA - prohibited
ABA - allowed if client is represented by independent counsel
Sexual Relations with Client
ABA - prohibited unless preexisting consensual relationship
CA - allowed but no coercion or undue influence, no demand as condition of representation, and can’t represent client incompetently due to relation
Conflict Representing Organizations
Attorney represents the organization, not the employees
Attorney must ensure employee knows that there is no confidentiality
Solicitation of Gifts - ABA
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
Solicitation of Gifts - CA
Must not induce gifts
Rebuttable presumption of undue influence if attorney prepares the instrument containing a gift to attorney
Media Rights - ABA
Expressly prohibits getting media rights until after the conclusion of representation
Media Rights - CA
Trial judge must ensure D understands the conflict
Client Property and Records
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
Duty of Competence
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
Duty of Care and Dilligence
Duty to pursue mater diligently, and with the skill and attention one would give to one’s own personal matters
Duty of Communication
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
Duty of Confidentiality
Duty to maintain a client’s secrets - any info, however learned
Duty never goes away
Exceptions to Confidentiality - ABA
1) Consent or implied authority
2) Prevent death or GBI
3) Prevent/rectify serious financial loss
4) Final court order
5) Fee collection litigation
6) Ethics defense
7) Malpractice defense
Exceptions to Confidentiality - CA
1) Prevent death or GBI
2) Final court order
3) Fee collection litigation
4) Ethics defense
5) Malpractice defense
6) Criminal defense
Unauthorized Practice of Law
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
Duty of Fair Representation - A lawyer cannot:
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
Criminal Defendants Who Testify
Must allow D to testify even if lawyer reasonably believes the testimony is false
ABA - 1) try to dissuade D from falsely testifying; 2) ask tribunal for permission to withdraw; 3) set the matter straight
CA - 1) try to dissuade D from falsely testifying; 2) ask tribunal for permission to withdraw; 3) allow D to testify in narrative fashion but can’t use the false info in closing
Duties of a Public Prosecutor
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;
Try to remedy a conviction when P knows of clear and convincing evidence that D didn’t commit the crime
Duty to the Public - ABA
Lawyer must report rule violation by another attorney, unless confidential/privileged
Duty to the Public - CA
Must self-report to the State Bar for convictions, felony charges, civil liability (fraud/breach of fiduciary duty), sanctions > $1,000 (except discovery), and more than 3 malpractice suits in 12 months
Mandatory Withdrawal
1) Representation will result in violation of Rules or other law
2) Lawyer’s physical or mental condition materially impairs ability to represent
3) Lawyer is discharged
Permissive Withdrawal
1) Withdrawal can be accomplished without material adverse effect on client’s interests (not CA);
2) Client has used lawyer’s services to perpetrate a crime or fraud (not CA);
3) Representation will result in an unreasonable financial burden on lawyer (not CA);
4) Client persists in a course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent;
5) Client insists on taking action that lawyer considers repugnant or with which lawyer fundamentally disagrees;
6) Client fails to pay their bill and has been given reasonable warning that lawyer will withdraw unless the obligation is fulfilled;
7) Other good cause for withdrawal exists
