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Select Topics Part 2 > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Professional Responsibility Duties

A
  1. Duties to the Client
  2. Duties to Third Parties
  3. Duties to the Court
  4. Duties to the Profession
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2
Q

Duties to Client

A
  1. Duty of Loyalty
  2. Duty of confidentiality
  3. Duty of competence and diligence
  4. Duty to communicate with client
  5. Duty of financial integrity and trustworthy handling of client’s funds and property
  6. Duty to make reasonable fee arrangements
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3
Q

Conflicts of Interest

A
  1. Concurrent Conflicts between current/former clients; attorney’s financial/personal interest
  2. Gifts and media rights
  3. Between client and payer of client’s fees
  4. Imputed Conflicts
  5. Involving former government attorneys
  6. Duty to Avoid Sexual Relations with client
  7. Duty to Withdraw
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4
Q

Duties to Third Parties

A
  1. Duty of fair representation (truthfulness)
  2. Duty to opposing parties in litigation
  3. Duty to pursue litigation for proper purpose
  4. Duty of prosecutors
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5
Q

Duties to the Court

A
  1. Duty of candor
  2. Duty to not mishandle, falsely describe, or falsify evidence
  3. Duty not to mix roles as advocate and witness
  4. Duty to witnesses, judges, and jurors
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6
Q

Duties to the Profession

A
  1. Duty to avoid unauthorized practice of law
  2. Duty to avoid illegal fee-splitting
  3. Duty to supervise employees
  4. Duty of truthful advertising
  5. Duty to not solicit clients
  6. Duty to the public
  7. Duty to report ethical violations (ABA only)
  8. Duty to self-report (CA)
  9. Duty to avoid representation for improper purpose
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7
Q

Duty of Truthful Advertising

A

Advertising - general attempt to obtain business, including tv and radio ads, and mass mailings.

Material misrepresentations or misleading communications prohibited as ethical violations

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8
Q

Advertising (CA)

A

Advertisement must not contain:

  1. a guarantee or warranty of the outcome;
  2. words or symbols suggesting quick cash/settlement;
  3. impersonation/dramatization of a lawyer or client without disclosing impersonation/dramatization
  4. contingent fee offer that does not disclose client’s liability for litigation costs
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9
Q

False or Misleading Communications (CA)

A
  1. communications delivered to potential client in the hospital or suffering from physical or mental stress
  2. mailings seeking fee-paying work not clearly labeled as advertising material
  3. communications containing testimonials or endorsements without disclaiming that such communications are not a promise of a potential client’s case.
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10
Q

Solicitations

A

More direct and personal than ads.

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 lawyer has a persona, professional, or family relationship

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11
Q

Targeted Direct-Mail Exception

A

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

CA - Must be labeled as “advertising material”

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12
Q

Duty to Make Reasonable Fee Arrangements (ABA)

A

Fee must be communicated to the client before or within a reasonable time after commencing representation.

Lawyer must not provide financial assistance to clients in connection with litigation EXCEPT:

i. lawyer may advance court costs and expenses and make repayment contingent on outcome; and
ii. lawyer representing indigent client may pay court costs and expenses

Lawyer prohibited from buying a client with promise of financial assistance.

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13
Q

Duty to Make Reasonable Fee Arrangements (RPC)

A
  1. Lawyer may not provide financial services to clients in all contexts
  2. Lawyer explicitly prohibited from buying potential clients with promise to pay personal or business debts
  3. Lawyer may lend money to client for any purpose after lawyer is hired if client gives written promise to repay loan
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14
Q

Reasonableness of Fees

A

Factors:

  1. Difficulty of the matter
  2. prevailing fees in the locale
  3. time and business consumption

Fed - fees must be reasonable
CA - fees must not be unconscionable, client must give informed consent

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15
Q

Contingency Fee Requirements

A
  1. Must be in writing
  2. state how fee is to be calculated
  3. state what expenses are to be deducted from recovery
  4. whether fee is on gross or net recovery
  5. must warn client of expenses due regardless of outcome

ABA - prohibited in domestic relations matters and representation of defendants in criminal cases

CA - permitted in domestic so long as divorce is not encouraged - must not be contingent on securing dissolution, spousal support, or property settlement in lieu of spousal support. No explicit bar against contingent fees for criminal cases

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16
Q

Fee Splitting

A

Lawyer may not split fee with non-lawyer.

ABA - lawyer may split fee with another attorney with client’s consent so long as fee is not increased and fee is either proportional to the work done or each lawyer assumes joint responsibility.

CA - lawyer may split fee with another attorney with client’s INFORMED WRITTEN consent so long as it does not increase fee. no proportionality rule. Agreement with other lawyer must be in writing.

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17
Q

Referral Fees

A

Permits non-exclusive reciprocal referral agreements.

ABA - permits nominal gifts as expression of appreciation.

CA - referral fees as gratuity permitted.

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18
Q

Conflict of Interest

A

Arises when representation of a client will be directly and materially adverse to the interests of another client

or where there is:

1) significant risk that
2) representation of a client will be materially limited
3) by lawyer’s personal interests or the interests of another client, former client, or third person.

Can be actual or potential.

Must be disclosed.

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19
Q

Conflict of Interest Analysis

A
  1. Define conflict.
  2. Discuss potential conflicts
  3. Determine if they ripen into actual conflicts.
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20
Q

Acceptance/Continued Representation (Waiver of Conflict)

A

Even if there is a conflict, lawyer may continue representation if:

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

ABA - client consent must be confirmed in writing.

CA - client consent to the conflict in writing;

If NO significant risk that rep will be limited, written disclosure to client is required where:

  • lawyer has, or knows that another lawyer in the lawyer’s firm has a relationship with or responsibility to a party/witness in the same matter; OR
  • another party’s lawyer is personally related or lives with lawyer, is a client of the lawyer/another lawyer in lawyer’s firm, or intimate relationship with the lawyer.
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21
Q

Former Clients

A

1) Lawyer cannot represent client in same or substantially similar matter, materially adverse to former client
2) if former firm represented client while attorney was there and attorney learned confidential information, attorney may not represent client at new firm where it is same or substantially the same as prior case and new client is materially adverse to client of former firm

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22
Q

Conflicts in Representing Organizations

A

Attorney does not represent the employees of an organization and must advise employees of lack of duty of loyalty and confidentiality

Common issues:

1) Conflicts between organization and employees
2) organization paying for representation of employees
3) confidentiality - employee of organization often misunderstands (could be violation of duty of honesty)

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23
Q

Agreements Limiting Malpractice

A

Attorney should either withdraw or advise client in writing to seek independent counsel and give client an opportunity to do so for any agreements limiting lawyer’s liability for past malpractices

Must fully disclose in writing terms and effect of such a settlement agreement limiting liability.

ABA - allows lawyer to limit liability prospectively through a release IF client is actually represented by independent counsel

CA - limiting liability prospectively permissible if client is advised in writing to seek independent counsel and is given an opportunity to seek independent advice.

24
Q

Imputed Conflicts

A

Lawyer who faces a conflict of interest imputes the conflict on all lawyers in that lawyer’s firm/department.

ABA - conflict NOT imputed if between a former client and:

  1. disqualified lawyer timely screened;
  2. shares no part of the fee specific to the representation;
  3. written notice promptly given to any affected former client; and
  4. certification of compliance

CA - no discipline for imputed conflicts

25
Q

Imputed Conflict Exceptions

A

Does not apply to conflicts between:

  1. former and current government lawyers
  2. purely personal interest of conflicted lawyer that will not inhibit other lawyers in the firm from representing client competently and diligently
  3. conflicted lawyer’s close family relation with another lawyer representing a different client in the matter
  4. conflicted lawyer’s sexual relationship with client
26
Q

Conflicts Involving Government Attorneys

A

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

matter - proceeding, investigation, application, or other similar matter involving specific parties

No imputation if disqualified lawyer timely screened, shares no part of the fee, and disclosure is made to the appropriate government agency of the screening arrangement

CA - lawyer who has participated on prosecution side of a criminal case cannot participate on defense side.

Same screening exception to imputation

27
Q

Financial Conflicts

A
  1. Transaction and terms must be fair and reasonable to the client and fully disclosed, understandable, and transmitted in writing
  2. client must be informed in writing of desirability of obtaining advice of independent legal counsel to review terms of the transaction and give reasonable opportunity for client to do so
  3. client must understand lawyer’s role in the transaction and give informed consent in writing
28
Q

Purchasing Property at Foreclosure

A

CA forbids lawyer from:

1) purchasing foreclosure property where lawyer or affiliate represents a party; and
2) from representing a seller where the purchaser is a spouse, relative, or employee of lawyer

29
Q

Gifts to Attorney

A

ABA - unless related, attorney must not SOLICIT substantial gift from client

CA - prohibited from SOLICITING substantial gift. May prepare instrument with gift if related to client or client is advised by independent lawyer who provides certificate or review.

Rebuttable presumption of undue influence if attorney prepares instrument (statutory undue influence)

30
Q

Media Rights

A

ABA - prior to conclusion of representation of a client, lawyer must not make or negotiate an agreement giving lawyer literary or media rights to an account based all or in part on information relating the the representation

CA - no restriction if D fully understands conflict and waives it to allow lawyer to continue representation. Trial court must ensure D understands conflict

31
Q

Sexual Relations with Client

A

Lawyer must not have a sexual relationship with a client unless lawyer and client had a consensual relationship before their client-lawyer relationship. Regardless, lawyer should ensure ability to represent client will not be affected by the relationship

CA - No restriction but prohibits lawyer from:

1) demanding sexual relations with a client as a condition of professional representation;
2) entering into sexual relations with client by coercion or undue influence; or
3) providing incompetent representation due to relationship

must obtain client’s statement before alleging violation of the rule where non existed before

32
Q

Client Property and Records

A

Lawyer must hold property of clients or third persons separate from the lawyer’s own property.

Client funds must be kept in a client trust account.

Lawyer must keep records of client funds and other property, keep client informed, and deliver undisputed funds/property to client or third person entitled to receive funds/property.

Lawyer must keep disputed funds or property separate.

Must return client records and may not pay funds to any other person other than client without client’s consent

Lawyer must preserve records of client funds or other property for five years after money/property distributed

33
Q

Duty of Competence

A

Knowledge, skill, preparation, and thoroughness necessary to undertake effective representation of the client.

Discipline for neglecting a legal matter, failing to prepare a matter, or taking a matter lawyer knows she is incompetent to handle.

CA - requires mental/physical fitness, includes duty to supervise employees, and is subject to discipline for intentionally/recklessly or repeatedly rendering incompetent legal services (higher burden)

OPTIONS:

  1. learn necessary knowledge within a reasonable time that does not cause client undue delay;
  2. ask associates or experienced attorney;
  3. emergency situations
  4. Dont take case
34
Q

Duty of Care and Diligence

A

Pursue a matter diligently with skill and attention that one would give to one’s own personal matters.

Research matters thoroughly, investigate facts, and take time necessary to adequately prepare matter for a client.

Lawyer cannot withhold or refuse to do legal work to force payment of a bill

35
Q

Duty of Communication (ABA)

A

Keep client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

Explain matter to extent reasonably necessary to permit client to make an informed decisions regarding the representation

36
Q

Scope of Representation

A

May be defined and limited by attorney-client agreement.

Lawyer should pursue client’s objectives in all reasonably available legal ways.

Must not advise or assist client to commit a crime or fraud but may discuss legal consequences of a proposed course of action with client

37
Q

Duty of Confidentiality

A

Includes attorney-client privilege, work-product privilege, and broader duty to client to keep their confidences and secrets

38
Q

Privilege

A

Attorney cannot be compelled in a proceeding to disclose confidential communications with client

Scope - privilege extends to those person necessary to attorney’s representation of client and to conversation of prospective clients before attorney-client relationship is formed.

Duration - survives termination of relationship and death of client

Exceptions:
1. crime-fraud exception - client seeks to employ attorney to assist in committing a crime or fraud

  1. issues relevant to a breach of attorney-client relationship - malpractice suit or suit for fees); and
  2. civil litigation between two former joint clients of attorney
39
Q

Reporting Out

A

ABA - allows lawyer representing an organization to reveal confidential information when lawyer believes violation of legal obligation by organization is reasonably certain to result in substantial injury to the organization.

CA - does not allow reporting out. Lawyer’s only recourse is to disclose to highest possible authority or otherwise withdraw

40
Q

Sarbanes-Oxley

A

Upon becoming aware, duty of securities lawyer to report credible evidence to Chief Legal Office if client:

  1. is materially violating a federal or state securities law
  2. breached fiduciary duty under federal or state law
  3. has committed a similar material violation of federal or state law.

If CLO fails to achieve appropriate response from client, securities lawyer must report to client’s board of directors, audit committee of the board, or a committee made up of outside directors.

May reveal to SEC any confidential info reasonably necessary to stop client from committing a violation that will cause substantial financial injury to client or its investors, rectify such a financial injury if lawyer’s services were used to further the violation, or prevent client from committing or suborning perjury

CA - does not permit disclosure to SEC.

41
Q

Unauthorized Practice of Law

A

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

Unauthorized practice includes use of lawyer’s professional judgment in fact investigation or witness interviews

Lawyer may not split fees, pay referral fees, or engage in the practice of law or sharing legal income with non-lawyer

CA - practice of law includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured

42
Q

Improprieties involving Evidence and Presentation of a Case

A

Lawyer may not:

  1. unlawfully obstruct another party’s access to evidence, or alter/destroy evidence
  2. falsify evidence/statements to court/opposing counsel/opposing party or counsel another to do so
  3. knowingly disobey an obligation under the rules of the court
  4. make frivolous discovery requests or objections to valid discovery requests
  5. Fail to give notice and return inadvertently transferred documents
  6. allude to any matter in trial not supported by admissible evidence
  7. assert personal knowledge of facts or personal opinion as to the facts, credibility, or justice of a case
  8. deceive court, opposing counsel, or opposing party by making false/misleading statements or failing to disclose material fact when disclosure necessary to prevent fraudulent or criminal act
  9. improperly contact jury, judge, or opposing party that counsel knows is represented by counsel
  10. improper trial publicity - substantially prejudice an adjudicative proceeding
  11. Fail to disclose facts necessary to prevent criminal act/fraud or counsel client to engage/assist in conduct lawyer knows is criminal, fraudulent, or a violation of law or rule.

CA rules also forbid lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain advantage in civil suit (extortion)

43
Q

Criminal Defendants who Testify Falsely

A

Lawyer must allow D to testify even if lawyer reasonably believes testimony will be false but must try to convince D not to testify falsely.

If that fails, lawyer may ask tribunal for permission to withdraw

ABA - lawyer must disclose to tribunal even if info is privileged or confidential

CA - must first try to dissuade D from testifying falsely, then ask tribunal for permission to withdraw. if that fails, lawyer may question witness on the stand up to the point at which lawyer knows D will testify falsely and then may allow D to testify in narrative fashion.

Lawyer may not use false testimony in closing arguments and may not disclose privileged or confidential info to tribunal to set the matter straight

44
Q

Contact with Represented Party

A

Must not communicate about the matter with a person he knows to be represented by counsel in the matter unless person’s counsel has granted permission or he is authorized by law or court order to make direct communication

45
Q

Duties of Public Prosecutor - ABA

A
  1. refrain from prosecuting charge that prosecutor knows is not supported by probable cause;
  2. make reasonable efforts to ensure accused has been advised of right to and procedure for obtaining counsel and has been given an opportunity to do so
  3. not seek to obtain from unrepresented accused a waiver of important pretrial rights
  4. make timely disclosure to defense of exculpatory evidence and mitigating circumstances
  5. refrain from subpoenaing attorney in criminal proceeding to give evidence about client unless prosecutor reasonably believes info not protected by privilege, evidence is essential to ongoing investigation, and no feasible alternative
  6. refrain from extrajudicial statements that have substantial likelihood of heightening public condemnation of accused except for statements necessary to inform public of nature/extent of prosecutor’s action and serve a legit law enforcement purpose and exercise reasonable care to prevent investigators from engaging in such extrajudicial statements
  7. promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted D did not commit subject offense; and
  8. seek to remedy conviction when prosecutor knows of clear and convincing evidence that D was convicted for offense D did not commit
  9. exercise reasonable care to prevent subordinates (including investigators and police) from making statements that the prosecutor is prohibited from making
46
Q

Duties of Public Prosecutor - CA

A

Same as ABA and -

Prosecutor shall make timely disclosure to defense of all evidence or info known to prosecutor that prosecutor knows or reasonably should know tends to negate guilt of accused, mitigate offense, or mitigate sentence.

Includes impeachment evidence.

47
Q

Duty to Public

A

Lawyer’s commission of fraud, crime, or other serious immoral act is an independent breach of duty to the public

ABA - lawyer who knows another lawyer has committed a violation of RPC that raises substantial question as to lawyer’s honesty or fitness as a lawyer must inform appropriate professional authority. Does not require disclosure of privilege or confidential info

CA - no requirement to report another lawyer’s misconduct but must SELF-REPORT when:

  1. sued for malpractice three times in 12 months
  2. civilly liable for fraud, breach of fiduciary duty, etc
  3. sanctioned for more than $1000
  4. charged with a felony
  5. convicted of serious crimes
  6. disciplined in another jurisdiction
48
Q

Mandatory Withdrawal

A
  1. representation will result in violation of RPC or other law
  2. lawyer’s physical or mental condition materially impairs lawyer’s ability to represent client
  3. lawyer is discharged
  4. client uses attorney’s work to commit a fraud (ABA only)

Must follow rules of tribunal to withdraw and take steps to protect client’s interest

49
Q

Permissive Withdrawal (ABA)

A
  1. where withdrawal can be accomplished without material adverse effect on interest of client
  2. client persists on course of action involving lawyer’s services that lawyer reasonably believes is criminal or fraudulent
  3. client used lawyer’s services to perpetuate crime/fraud - cannot disclose
  4. client insists upon action that lawyer considers repugnant or with which lawyer has a fundamental disagreement
  5. client fails to substantially fulfill an obligation to lawyer regarding lawyer’s services and has given reasonable warning that lawyer will withdraw unless obligation fulfilled
  6. representation will result in unreasonable financial burden on lawyer
  7. other good cause
50
Q

Duty to Withdraw Issues

A
  1. Is court permission required?
  2. What steps must lawyer take to protect client’s interest
  3. continued duty of confidentiality
51
Q

Permissive Withdrawal (CA)

A

Client:

  1. persists in a course of action involving the lawyer’s services that the lawyer reasonably believes criminal or fraudulent
  2. insist upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
  3. 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 obligation is fulfilled
  4. uses attorney’s work to commit a fraud
  5. other good causes for withdrawal
52
Q

Duty of Communication (CA)

A

Communicate all plea offers to criminal clients, and all reasonable settlement offers to a client in a civil matter

Attorneys who know or reasonably should know that they do no have professional liability insurance must disclose in writing to client whenever it is reasonably foreseeable that the amount of legal representation for that client will exceed four hours.

Does not apply to government lawyers or in-house counsel or when lawyer is providing emergency legal services.

53
Q

Permissive Disclosure

A

ABA - Permits but does not require disclosure:

  1. with consent/implied authority to disclose
  2. to prevent future death or serious bodily harm
  3. to prevent or rectify substantial financial loss
  4. required by final court orders
  5. fee collection litigation
  6. ethics defense
  7. malpractice defense
  8. remedy false disclosure

Attorney must disclose client confidences if attorney’s work has been used by client to commit fraud and no other way to rectify harm

Permits lawyer to reveal info concerning wrongdoing in an organization where the lawyer believes it is necessary in the best interests of the organization

54
Q

Disclosure Exceptions

A

CA - Exceptions ONLY to prevent future criminal act, likely to cause death or substantial bodily harm.

Lawyer must inform client of such a disclosure.

Lawyer must first attempt to persuade client not to commit such a crime or to inform the client of the attorney’s ability to disclose the confidential information.

Disclosure limited to info necessary to prevent threatened crime

55
Q

Duty of Fair Representation

A
  1. Must not improperly contact a juror or the judge
  2. Restricts trial publicity that lawyer knows/should know will substantially prejudice an adjudicative proceeding
  3. Duty of candor to tribunal; and
  4. Fairness to opposing counsel and parties

Select Topics Part 2 (7 decks)

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