Professional Responsibility

Question 1

Duty of Competence

Answer 1

An affirmative duty to utilize the legal knowledge, skill, thoroughness and preparation necessary for the representation.

Question 2

Advertising & Solicitation

Answer 2

Protected by 1st commercial speech doctrine, Can’t be false or misleading, technical rules. Written solicitations are permissible but can’t be false or misleading.

Technical Rules:

• keep for 2 years after last dissemination
• has to include name of 1 resp. lawyer

Question 3

Dating a Client

Conflict of Interest

Answer 3

Dating a client - Majority of jurisdictions silent to issue, CA allows such provided not for return of legal services, legal services don’t suffer, or fee increase.

Question 4

Conflict of Interest

Answer 4

As a general rule, when there is a potential conflict of interest, the attorney must disclose in writing.

Question 5

Lawyer v Client

Conflict of Interest

Answer 5

MR 1.8 - A lawyer must not represent a client if the representation of the client may be MATERIALLY LIMITED by the lawyer’s own interests, unless the lawyer reasonably believes there will be no adverse affect, and the client consents after consultation.

Question 6

Multiple Clients

Conflict of Interest

Answer 6

When there is a potential conflict of interest, as there always is with multiple plaintiffs, the attorney has a positive duty to so apprise of the conflict and in CA obtain written approval before proceeding. Must be done before discussion/confidences are revealed. MRPC 1.7

Question 7

Contingency Fees

Answer 7

MRPC and CPC: Contingency fee agreement must be in writing and explained. (way fee is calculated, including percentages payable upon settlement, expense deducted from recovery and if expenses deducted before or after fee determination.) (Expertise of attorney, complexity, time & skill of attorney)

Criminal - ABA not permitted, CA permissible but disfavored
Divorce - ABA not permitted, CA permissible but disfavored.

Question 8

Finder’s Fee - Non-lawyer

Answer 8

Giving finder’s fee to a non-lawyer is impermissible and subjects attorney to discipline.

Question 9

Fees-Retainer Agreements

Answer 9

Model Rules prefer non-contingency fee agreements to be in writing. In CA, non-contingency fee contracts over $1,000 must be in writing. CA recognizes exceptions if client is corp, states in writing doesn’t want written fee agreement, same as previous services, emergency actions to protect client’s rights or writing impractical.

Question 10

Multiple Clients

Conflicts of Interest

Answer 10

When there is a potential conflict of interest, as there always is with multiple plaintiffs, the attorney has a positive duty to so apprise of the conflict and in CA obtain written approval before proceeding. Must be done before discussion/confidences are revealed. MRPC 1.7

Question 11

Scope of Representation

Answer 11

A lawyer should abide by a client’s decision concerning the scope of representation.

Question 12

Reasonableness of Fees

Answer 12

Factors to consider:

• Expertise of the attorney
• Complexity of the case
• Time and skill of the attorney

Question 13

Confidences - Conflict of Interest

Answer 13

Confidences of a client and lawyer must not be revealed absent consent and disclosure.

An attorney must hold inviolate the confidences of his client. (B&P 6068(e); MRPC 1.6)

Question 14

Competency

Conflict of Interest

Answer 14

A lawyer shall provide competent representation to a client. Included in that duty is to communicate and explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation

Question 15

Targeted Direct Mail

Answer 15

Written solicitations are generally permitted provided they are truthful and not misleading. Shapero v Kentucky Bar (1988)

Required to have “advertisement” or reasonable equivalent

Question 16

Divided Loyalty

Answer 16

A lawyer must not take a client if his loyalty is divided. Although it is permissible to take multiple clients, if an “actual” conflict of interest develops, the lawyer must withdraw from all of them.

Question 17

Client v Third Party

Conflict of Interest

Answer 17

Third party payment is permittable if the client consents. (Cal requires written consent). The lawyer’s duty of loyalty is owed to the client, not the payor. Lawyer must inform the payor his loyalty is to the client, and that the duty of confidentiality owed to the client will not be breached, i.e., the lawyer must not reveal client’s confidences to the payor.

Question 18

Mandatory Withdrawal

Answer 18

When an actual conflict exists between a lawyer and client, the lawyer must withdraw from representation. Attorneys must avoid adverse interests to her client.

Question 19

Zealous Representation

Answer 19

Attorneys must zealously represent their clients

Question 20

Referral Fees

Answer 20

Under the ABA rules, referral fees are not permitted. In CA, referral fees are allowed if disclosed in writing, total fee isn’t unconscionable and isn’t increased because of referral fee.

Question 21

Duty of Communication

Answer 21

A lawyer has the duty to reasonably communicate with his or her client and keep him or her informed of the status of the case during all stages of representation.

Question 22

Permissive Withdrawel

Answer 22

Lawyer may request withdrawal from representation where there is no material adverse effect to the client. L must give reasonable notice (ABA rule.)