PROFESSIONAL RESPONSIBILITY

Question 1

Formation of Lawyer-Client Relationship

Answer 1

A lawyer-client relationship is formed when: (1) a person seeks legal services from a lawyer; AND (2) the lawyer either (a) manifests consent to provide services, OR (b) fails to manifest lack of consent to do so and knows or should know that the person would reasonably rely on the lawyer to provide legal services.

Question 2

Proper Scope of Lawyer-Client Relationship

Answer 2

• Generally, a client controls the objectives of the representation, and makes substantive decisions (including whether to accept settlement offers or plead guilty, testify, or waive a jury trial in criminal matters). The lawyer controls the means (tactical decisions) to accomplish those objectives, BUT must consult with the client as to means by which the objectives are pursued.
• A lawyer may limit the scope of the representation if: (1) it’s reasonable under the circumstances; AND (2) the client gives informed consent.

Question 3

Duty of Competence–General Duty Owed

Answer 3

A lawyer owes his client the duty of competence, which requires the lawyer to possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client.

o Under this duty, a lawyer CANNOT take a case in an unfamiliar area of law unless he gains competence by:

(1) ASSOCIATING with another lawyer reasonably believed to be competent;
(2) acquiring sufficient LEARNING and skill before performance is required; AND
(3) In an EMERGENCY a lawyer MAY give advice or assistance (even if the lawyer does not have the skill ordinarily required) where referral/consultation/association with another lawyer would be impractical.

Question 4

Duty of Competence–Consequences of Incompetence

Answer 4

Incompetence exposes a lawyer to: (1) discipline by the bar; (2) disqualification of the lawyer from a litigation matter; AND/OR (3) a civil malpractice lawsuit.

In CA, a lawyer is only subject to discipline if he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.

Question 5

Duty of Communication

Answer 5

A lawyer must keep the client reasonably informed about any significant developments relating to the representation.

The duty to communicate includes:

(1) promptly informing the client of any situation where the client’s informed consent is required;
(2) keeping the client reasonably informed on the status of the matter;
(3) promptly complying with requests for information (i.e. phone calls, inquiries);
(4) consulting with the client about strategy decisions and any matters requiring the client’s consent; and
(5) advising the client when the lawyer knows that the client expects assistance not permitted by ethical rules.

Question 6

Duty of Diligence

Answer 6

• A lawyer shall act with reasonable diligence and promptness in representing a client. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end.
• In CA, a lawyer CANNOT intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing the client.

Question 7

Duty of Confidentiality–General Duty

Answer 7

A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. This duty is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested that the information be kept confidential or whether the use of the information will damage the client.

Question 8

Duty of Confidentiality–ABA

Answer 8

Under the ABA, a lawyer may disclose confidential information if:

(a) the client consents;
(b) the lawyer is ordered by law to do so;
(c) it’s needed to defend a malpractice action or in a suit to recover legal fees;
(d) to prevent death or substantial bodily harm;
(e) to prevent the client from committing a crime or fraud (in which the lawyer’s services were used) that will result in substantial financial loss; OR
(f) to secure legal advice about the lawyer’s compliance with ethical rules.

Question 9

Duty of Confidentiality–CA

Answer 9

In CA, a lawyer MAY (but is not required) to disclose confidential information of a client when the lawyer reasonably believes disclosure is necessary to prevent a crime that will likely result in death or substantial bodily injury to a person. This is the only circumstance a lawyer may disclose confidential information under the CA rules, and it’s the same whether the client is an individual or an organization.

Additionally, the lawyer must also satisfy two requirements before the disclosure takes place – the lawyer must:
(1) first make a good faith attempt to counsel the client out of committing the crime and/or changing their course of action; AND (2) inform the client of the lawyer’s
ability or decision to disclose the information.

Question 10

Duty of Confidentiality–The Client is an Organization

Answer 10

If the client is an organization, and the lawyer becomes
aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer MUST refer the matter to higher authorities within the organization. After reporting up, the ABA permits disclosure to an outside source if it’s necessary to prevent substantial injury to the organization. However, CA only permits disclosure to an outside source if it’s necessary to prevent a CRIME that’s likely to result in death or substantial bodily harm.

Question 11

Conflicts of Interest– General Duty of Loyalty

Answer 11

• A lawyer owes his client the fiduciary duty of loyalty, which means that he must act in the client’s best interest and avoid conflicts. This duty requires that the lawyer not represent a client when a conflict of interest exists.
• Additionally, a lawyer CANNOT engage in self-dealing OR act in his own interest rather than the client’s best interest.

Question 12

Conflicts of Interest– Current Clients (Concurrent Conflicts)

Answer 12

• A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.
• A concurrent conflict of interest exists if:
(a) the representation is directly adverse to another client; OR
(b) there is a significant risk that the lawyer’s representation will be materially limited due to his (i) personal interests or (ii) responsibilities to another present/former client or third- person.
• However, a lawyer MAY represent a client whose interests conflict if:
(1) he reasonably believes that he will be able to provide competent and diligent representation to the client;
(2) the representation is not prohibited by law;
(3) he’s not representing parties on opposite sides of the same litigation; AND
(4) each client affected by the conflict gives informed consent (CA = informed written consent; ABA = informed consent, confirmed in writing).

Question 13

Duty of Loyalty–Dual Representation in Criminal Case

Answer 13

A lawyer should normally DECLINE to represent multiple defendants in a criminal case because the potential for a conflict of interest is so grave.

Question 14

Duty of Loyalty–California Lawyers Providing Written Disclosure

Answer 14

In CA, a lawyer must provide written disclosure (even if there is no significant risk that the representation will be limited) when the lawyer:

(a) has (or knows that another lawyer in the firm has) a legal, business, financial, professional, or personal relationship to a party or witness in the same matter; OR
(b) knows or reasonably should know that another party’s lawyer is a family member (spouse, parent, child, sibling), lives with, or is a client of the lawyer (or another lawyer in the firm) or has an intimate personal relationship with the lawyer.

Question 15

Conflicts of Interest–Former Clients of the Lawyer

Answer 15

A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.

Unless a former client gives informed consent, a lawyer CANNOT thereafter represent another person in the same or a substantially related matter when the person’s interests are materially adverse to the interests of the former client.

Question 16

Conflicts of Interest–Former Clients of the Lawyer’s Whole Firm

Answer 16

A lawyer owes his clients the fiduciary duty of loyalty, which requires that the lawyer not represent a client when a conflict of interest exists.

Unless a former client gives informed consent, a lawyer CANNOT knowingly represent a person in the same or a substantially related matter that the lawyer’s firm had previously represented a client:

(1) whose interests are materially adverse to that person; AND
(2) about whom the lawyer had acquired confidential information that is material to the matter.

Question 17

Business Transactions with a Client & Pecuniary Interests Adverse to the Client–General Rule

Answer 17

• A business transaction between a lawyer and current client is only permitted if:

(1) all terms are fair and reasonable to the client;
(2) the terms are fully disclosed in writing;
(3) the client is advised to consult with outside counsel and is given reasonable opportunity to do so; AND
(4) the client consents in writing.

• This rule also applies when a lawyer knowingly acquires an ownership, possessory, security, or pecuniary interest adverse to the client.

Question 18

Business Transactions with a Client & Pecuniary Interests Adverse to the Client–Exceptions to General Rule

Answer 18

Rule DOES NOT apply to:

(a) ordinary fee arrangements between a client and lawyer – except when accepting an ownership interest in a client’s business or other property as full/partial payment of legal fees;
(b) standard commercial transactions for products/services that the client generally markets to others; and
(c) to a charging lien given to secure payment of a contingency fee [CA only].

Question 19

Mandatory Withdrawal

Answer 19

A lawyer MUST withdraw from representing a client if: (a) discharged; (b) a physical or mental condition of the lawyer exists (ABA = materially impairs the representation; CA = unreasonably difficult to effectively carry out the representation); OR (c) the representation will result in a violation of an ethics rule or other law.

In CA, a lawyer MUST also withdraw if he knows or should know that the client is bringing an action (1) without probable cause, (2) for the purpose of harassing or maliciously injuring a person.

Question 20

Mandatory Withdrawal–Procedure

Answer 20

Proper withdrawal requires the lawyer to: (1) provide timely notice to the client; AND (2) promptly return any unspent legal fees, advanced expenses, and all of the client’s papers and property. A lawyer CANNOT hold the client’s materials pending the payment of his fees.

• Under the ABA and CA, a lawyer MUST obtain the court’s approval to withdraw after a lawsuit has been filed.

Question 21

Duty of Candor to the Court-Lawyer Dishonesty or Fraud

Answer 21

• A lawyer CANNOT engage in conduct involving dishonesty or fraud. A lawyer CANNOT knowingly:

(a) make a false statement of fact or law to a tribunal;
(b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(c) fail to disclose to a tribunal controlling legal authority known to be adverse (unless disclosed by opposing counsel); OR
(d) offer or use evidence that the lawyer knows to be false.

Question 22

Duty of Candor to the Court–Lawyer Knows/Learns he Offered False Material

Answer 22

If a lawyer knows/learns he has offered false material evidence (including witness testimony), the lawyer MUST take reasonable remedial measures, including disclosure to the tribunal (if necessary). In CA, disclosure of confidential
information is prohibited (absent consent of the client).

Question 23

Duty of Candor to the Court–Submitting Evidence the Lawyer Reasonably Believes is False

Answer 23

A lawyer MAY refuse to offer evidence that the lawyer

reasonably believes is false EXCEPT FOR the testimony of a criminal defendant.

Question 24

Calling a Witness the Lawyer KNOWS will commit perjury

Answer 24

A lawyer CANNOT call a witness that he knows will commit perjury (testify falsely). A lawyer’s knowledge that evidence is false may be inferred from the circumstances. If a lawyer later learns that a witness committed perjury, the lawyer must take reasonable remedial measures.

However, a defendant in a criminal case has the constitutional right to testify on his own behalf. In this situation, the lawyer should:
o First, try to persuade the client that the evidence should not be offered.
o Second, attempt to withdraw from the case (if the persuasion is ineffective).
o Third, if the attempt to withdraw is unsuccessful then: ▪ Under the ABA, the lawyer must tell the court,
including disclosure of confidential
information (if necessary).
▪ In CA, the lawyer must allow the defendant to
testify in a narrative fashion. Disclosure of confidential information is prohibited (absent consent of the client).

Question 25

Witness Perjury–Lawyer REASONABLY BELIEVES (but doesn’t know) that testimony is false

Answer 25

If a lawyer reasonably believes (but does not know) that the testimony is false, he MAY permit or refuse to offer the testimony/proof (the lawyer has discretion).

Question 26

Filing Frivolous Claims & Contentions

Answer 26

A lawyer has a duty to investigate the claims/defenses filed on behalf of a client, and CANNOT file frivolous claims/defenses with the Court. Specifically, the rule prohibits: (1) actions that lack probable cause and are intended to harass or maliciously injure; and/or (2) claims or defenses that are unwarranted under existing law without a good faith argument for a change in the law.

Whether a lawyer satified his duty to investiage the claims, defenses, and/or legal positions is measured by what a reasonable attorney would do in similar circumstances.

A lawyer for a defendant in a criminal proceeding (that could result in jail time) may nevertheless defend by requiring that every element of the case be established.

Question 27

Communication with a Represented Person

Answer 27

When a lawyer knows that a person is represented by counsel in a matter, the lawyer CANNOT speak to that person concerning the matter UNLESS: (a) the lawyer has permission from person’s lawyer – the represented person solely agreeing to speak is insufficient; (b) for communications authorized by law or a court order; OR (c) for communications with a public official, board committee, or body [CA only].

Subject to the exceptions above, this rule also covers any employee or agent of an organization whose communication might bind or be imputed to the represented organization.

Question 28

Amount of Lawyer’s Fees

Answer 28

Under the ABA, a lawyer’s fee must be reasonable.

In CA, the fee cannot be unconscionable or illegal. “Unconscionability” has been described by the California Supreme Court as a fee that is so exorbitant and wholly disproportionate to the to the services performed as to shock the conscience.

Factors to determine whether the fee is ethical include: the time, skill, experience, degree of specialty, and difficulty required for the task; preclusion of other employment; amount and whether the fee is fixed/contingent; relationship with the client; services performed and results obtained; and whether the lawyer engaged in wrongdoing (fraud, overreaching, failure to disclose).

Question 29

Contingency Fee Agreements–In General

Answer 29

• A contingency fee agreement is an agreement between the lawyer and client, stating that the lawyer’s fees will be paid out of any recovery the client receives.

Requirements:
o A contingency fee agreement MUST: 
(1) be in a
writing signed by the client; AND 
(2) include (i) the percentage of recovery the lawyer will take, (ii) the expenses that will be deducted from recovery, and (iii) whether the lawyer’s percentage is taken out before or after expenses.

In CA, the writing must also include: (3) how work or expenses not covered by the contingency fee will be charged; AND (4) that the fee is not set by law and is negotiable.

Question 30

Contingency Fee Agreements–When Prohibited

Answer 30

The ABA and CA prohibit contingency agreements for: (i) domestic relations matters when payment is contingent upon securing a divorce or upon the amount of alimony/support/property settlement obtained – but contingency fees for recovery of post-judgment balances is allowed; and (ii) representing a criminal defendant.

Question 31

Contingency Fee Agreements–Failure to Comply with Contingency Fee Agreements

Answer 31

o Failure to comply with these rules renders the
agreement voidable at the option of the client, but the
lawyer will still be entitled to collect a reasonable fee.

o A lawyer is also entitled to a reasonable fee when: (a)
there is a division of contingent fees between successive lawyers (i.e. a contingency fee lawyer has withdrawn with good cause OR is discharged by a client prior to deriving a recovery, and there is a later recovery); OR (b) a disqualified lawyer may be entitled to recovery for services performed prior to their removal under the unjust enrichment doctrine. The lawyer has the burden of proof to establish the reasonable fee.

Question 32

Sharing Legal Fees with Non-Lawyers

Answer 32

A lawyer or law firm CANNOT share legal fees with a non-lawyer (including referral fees), except for (DECOR):

(a) Death benefits paid to the deceased lawyer’s estate or heirs;
(b) payments to a lawyer’s Estate/representative for the purchase of the lawyer’s practice;
(c) Compensation or retirement plan payments to non-lawyer employees – even if the plan is based on profit-sharing;
(d) court-awarded legal fees that are shared with a non-profit Organization that employed, retained, or recommended the lawyer; OR
(e) a lawyer Referral service operated in accordance with California’s minimum standards [CA only].

Question 33

Solicitation of Clients

Answer 33

• A lawyer or his agent CANNOT solicit a person by in- person, live telephone, or real-time electronic contact for professional employment when a significant motive is for pecuniary gain UNLESS the person:

(a) is a lawyer;
(b) has a family, close personal, or prior business/professional relationship with the lawyer/law firm; OR
(c) [ABA only] routinely uses the type of legal services offered for business purposes.

Real-time electronic contact DOES NOT include chat rooms, text messages, or other written communications that recipients may easily disregard (i.e. email).

Additionally, a lawyer CANNOT solicit a person when: (a) said person has told the lawyer to not solicit; OR (b) if it involves coercion, duress, harassment, or [intrusion - CA only].