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Essay Rules > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

What is the issues checklist?

5 C’s + F.O.R.

A

A Client Loves Fierce Counsel, Courts Feel Differently

  1. A-C R/ship: Formation, Scope, Assisting in violation of law
  2. Confidentiality (GAWID): Gnrl, Disclosure (incl org), Inadvertent disclosure, A-C Privilege, Work product doctrine
  3. Loyalty (GRAPID): Gnrl, Potential COIs, Actual COIs, Rep despite COIs, Disclosure(CA), Imputed, Govt Ls
  4. Financial Responsibility: Fee A/ments, Retainer, Unreas/Uncon, Contingent, Disputes, Referral, Splitting, Advances & Loans, 3P Payor
  5. Communication, Competence, Diligence:
  6. Candor: 3Ps (Advertising, Mail, Solicitation), Court
  7. Fairness: Comms with adversaries, rep’d parties, press; to client: business trans, Malpractice, Gifts, Sex,
  8. Decorum: Comms with judge, Use of false evidence
        1. Use of Confidential Info to C’s Disadvantage
      2. Propreity Interest in SM of litigation
        1. Publication Rights Contract
        1. Serving in Legal Services Organization
      5. Former Govt Lawyers in Private Practice
      6. 3P Interference
      7. Limiting Malpractice Liability
      8. Gifts from Clients
      9. Close R/ship with Adversary Attorney
      10. Trial Counsel is Necessary Witness
      11. Sexual Relations
  9. Confidentiality: (3) Duty, A-C Priv, W-P Doctrine
  10. Communicate
  11. Competence: (2) Gnrl, Diligence
  12. Cash
  13. Fees: (4 - FFRUC)
    1. Fee Agreements (Non-Contingent)
      1. Unreas / Uncon
    2. Contingent
    3. Fee Splitting
    4. Referral
  14. Other Duties
    1. ​Profession (9 - )
      1. No Duty to Accept Representation
      2. Duty to Reject
      3. Duty to Withdraw
      4. Duty as Adviser
      5. Duties of Prosecutors
      6. Duty of Dignity and Decorum
      7. Duty to Expedite Cases
      8. Violate Court Rule or Order
      9. Discovery Abuse
    2. Third Party’s
    3. Adversary (3)
      1. Threatening Disciplinary Charges (CA only)
        1. Court: Candor and Fairness

8. Regulatory Controls

  1. Unauthorized Practice of Law
  2. Duty Not to Go into a Business with a Non-Lawyer
  3. Law-Related Services
  4. Multi-Jx Practice
  5. Reporting Misconduct
  6. Subordinate Lawyers
  7. Responsibilities of Partners, Managers & Supervisory Ls
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2
Q
  1. A-C Relationship
  2. Duty of Loyalty (17)
    1. Potential Conflicts
    2. Actual Conflicts
    3. Counseling C to Act
    4. Use of Confidential Info to C’s Disadvantage
    5. Propreity Interest in SM of litigation
    6. Business Transactions with C’s
    7. Publication Rights Contract
A

A-C Relationship

Formation:

Scope: Gnrly, a C controls the objec of rep, & makes substantive decisions (incl. whether to accept a settlement offer, plead guilty, testify, or waive a jury trial in criminal matters). The L controls the means (tactical decisions) to accomplish those objectives, BUT mst consult w/ C as to means by which objectives are pursued.

Assisting in violation of law: Cannot counsel C to commit C,F or other violation. H/e can discuss the consequences.

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3
Q
  1. Lawyer-Client R/ship - Scope Generally, a C controls…
  2. Duty of Loyalty (17)
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publication Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

A L has a DoL to his C that requires the L to put the interests of his C above all other interest and to avoid any conflicts.

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4
Q

Conflict of Interest

  • Potential Conflict of Interest A potential CoI exists…
  • Actual Conflicts of Interest
  • Representation Despite Conflicts
  • Personal Interest Issues
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

PCOI exists whn L suspects a CC, bt rep hs nt yet been ML. A CC exists whn a rep is (1) DA to another C, or (2) ML by resp to PC/FC/3P/L’s own intrsts.

ABA = no IWC for PCOI. In CA, w/out the IWC of each C, a L may nt rep more thn 1 C in a matter in whch the C’s intrsts pot cnflict.

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5
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts__​
    3. Counseling C to Act / Advising/Assisting in Violaion of Law
    4. Use of Confidential Info to C’s Disadvantage
    5. Propreity Interest in SM of litigation
    6. Business Transactions with C’s
    7. Publications Rights Contract
    8. Expense Advances and Loans
    9. Serving in Legal ServicesOrganization
    10. Former Govt Lawyers in Private Practice
    11. Third Party Interference
    12. Limiting Malpractice Liability
    13. Gifts from Clients
    14. Close R/ship with Adversary Attorney
    15. Trial Counsel is Necessary Witness
    16. Consensual Sexual Relations
A

U/ ABA, L mst nt rep a C if rep is (1) DA, or (2) ML by resp to P/FC/3P/L’s own intrsts UNLESS

(a) L reas believes able to prvde c&d rep to each affected C,
(b) rep not prohib by law,
(c) rep does nt involve 2 pties on opp sdes of same lit, &
(d) each C gives ICinW.

CA rule similar to ABA rule, but does not have the “reas believes” req.

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6
Q

Conflicts of Interest

  • Potential Conflict of Interest
  • Actual Conflict of Interest
    • Representation Despite Conflicts
  • Personal Interest Issues
A

Despite actual CoI’s, a L may represent a C if

  1. L reas bel able to prvde comp n dil rep to each aff C,
  2. rep is not prohibited by law,
  3. rep does nt involve assrtion of a claim by 1C against another C rep’d by same L, AND
  4. each C gives IC in W.

CA law similar but does nt hve “reas believes” requirement.

[In crim case, even when all D’s waive CoI claims, the trial ct can still prohibit joint rep]. H,T

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7
Q
  • ​Joint Representation
A

Joint Representation

  • Potential CoI: Joint rep is not per se invalid, but if the L advises the trial ct of a potential CoI, and the ct refuses to appoint separate counsel, the D is entited to automatic reversal. H,T
  • Actual CoI: If the D does not timely object to joint rep, the D must show (1) the L represented actual conflicting interest and (2) pj the D. H,T
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8
Q

Duty of Candor to the Tribunal

A

U/ ABA, L is prhbtd frm knowingly offering false ev. CA law req L to employ only means consistent w/ th truth, and never seek to mislead any judicial officer by a false statement of fact or law.

  • Remedial Measures
    • ​ABA, if L knws of false test elicited frm a prsn during an adjudicative proceeding, L mst (1) take reas rem measures to remonstrate the prsn confidentially, (2) advise prsn of L’s dty of candor to tribunal, and (3) seek w/drawal or correction of false testimony.
    • CA, whn a L cannot withdraw w/out pj a crim def, the L may allow client who intents to commit perjury to test in narrative w/out discosing the perjury to the ct. The L may not use the perjured test in closing argument.
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9
Q

II. Confidentiality

A. Duty of Confidentiality

  • Exceptions

​B. Attorney-Client Privilege & Waiver

C. Work Product Doctrine

D. Representation of Multiple Clients

A

The a-c privilege prohibits a ct or govt tribunal from compelling the revelation of conf comms b/w an A & a C if subject of the comm concerns legal advice.

The presence of a 3P will not destroy confidentiality IF the 3P is present to help further the a-c relationship.

When the Client is a Corp, the privilege covers communications between the Lawyer and a high-ranking corporate official.

Waiver - The A-C privilege exists for the benefit of the C not the L. The C is the privilege holder, & may waive the privilege. The L may assert the priivlege on the C’s behalf.

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10
Q

Conflict of Interest

  • …
  • Personal Interest Issues
  • …
  • Present Client Issues
  • Former Client Issues
    • Former Govt Lawyer
    • Former Firm Lawyer
  • Imputed Disqualification
    • Imputed Disqualification
A

A L must not represent a C in a matter in which the (1) L participated substantially, and (2) any attorney at the former firm has confidential, material info, unless the former C gives informed, written consent. H,T

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11
Q

II. Confidentiality

A. Duty of Confidentiality

B. Attorney-Client Privilege

C. Work Product Doctrine

D. Representation of Multiple Clients

A

Material a L prepares for litigation is immune from discovery or compelled disclosures, UNLESS the opp shows a sub need and an inability to gather the material w/out undue hardship.

A L’s mental impressions or opinions are immune from discovery or compelled disclosures regardless of the opposition’s need, unless the immunity is waived.

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12
Q

Conflict of Interest

  • ​Imputed Disqualification
A

Imputed Disqualification

If 1 L employed by a firm is unable to rep b/c of a CoI or conf issue with a former C, the disqual is imputed to the entire firm and no L in the firm may rep the C. H,T

If a Former Govt L is prohibited from rep’ing a C, the F may rep a C against the govt if (1) the FGL is screened from part, (2) not apportioned fees, and (3) prompt written notice is given to govt so govt takes preventative measures. H,T

Former C and Former Firm: If a L is prohibited from rep’ing a C based on duties to a former C and former firm ass., other firm Ls will not be precluded from representing the C if (1) disqualified L is screened from participation, (2) not apportioned fees, (3) prompt written notice is given to any affected former C, and (4) certification of compliance with these rules and the screening procedures are provided to any affected former C upon written request and termination of the screen procedures. H,T

Prsnl Intrst: If a L is prhbtd frm rep’ing a C bsd upn a prsnl intrst, other F Ls will nt be prcldd frm rep’ing th C if th prohib L’s disqual does nt mat limit th remaining F Ls’ rep of th C. H,T

Client Waiver: A C may waive an imptd disqual if (1) the L reas bel s/he will be able to prvde comp and dil rep to each affected C, (2) rep is nt prohib by law, (3) rep does nt involve assertion of a claim by one C against another C rep’d by the same L, and (4) each C gives ICinW. [CA law similar, but does not have the “reas believes” req]. H,T

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13
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

A L should not counsel acts that may subject a C to liability w/out a GF belief that such decision is in the C’s best intrst.

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14
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations

Conflict of Interest

  • …
  • Personal Interest Issues
    • ​Lawyer as a Witness
    • Property as Payment for Services
    • Proprietary Interests
    • Fees Collection
    • Business Transaction with a Client
    • Sexual Relations
    • 6A - Ineffective Counsel
    • Joint Representation
    • Former Govt Lawyer
    • Former Firm Lawyer
    • Imputed Disqualification
A

Prop as Payment for Services: Under ABA, a L may receive prop as a payment for services, ala the payment does not involve acquiring a proprietary interest in a litigation sm. H,T

Proprietary Interest: Under ABA, except for liens to collect a fee, a L may not obtain a proprietary interest in a litigation sm. H,T

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15
Q

Attorneys Fees

  • …
  • Referral Fees (ABA v CA)
  • Expense Advances
  • Loans
  • 3P Payor Rule
  • Property as Payment for Services
  • Fees Collection
A

Property as Payment for Services

Under ABA, a L may receive property as a payment for services, ala the payment does not involve acquiring a proprietary interest in a litigation subject matter. H,T

Fees Collection

Under ABA/CA laws, a L may collect a fee by taking an interest-bearing promissory note, or obtaining a lien upon a potential recovery to secure the fee payment, provided the L complies with rule of prof. conduct relating to bus transaction with Cs. H,T

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16
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
  • Personal Interest Issues
    • Fees Collection
    • 6A - Ineffective Counsel
    • Joint Representation
    • Former Govt Lawyer
    • Former Firm Lawyer
    • Imputed Disqualification
A

Fees Collection: Under ABA/CA laws, a L may collect a fee by taking an interest-bearing promissory note, or obtaining a lien upon a potential recovery to secure the fee payment, provided the L complies with the rules of prof. conduct relating to bus transcations with Cs. H,T

Business Transaction with a C: U/ ABA, a fee paid in prop hs the essential qualities of a bus transaction with a C. U/ ABA/CA laws, a L shall nt enter into a bus trans w/ a C, or knowingly acquire an o/ship, possessory, security, or other pecuniary interest adverse to a C, UNLESS:

(1) trans or acquisition and its terms are fair and reas to C and fully disclosed in writing in manner whch C shld reas have understood,
(2) C is advised in writing C may seek advice of an indep L and is given reas opp to do so,
(3) C consents in writing to the trans or acquisition and its terms. H,T

Exception - A L may enter into standard commercial trans that the C regularly provides to others. H,T

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17
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal Services Organization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations

Attorneys Fees

  • …
  • Referral Fees (ABA v CA)
  • Expense Advances
  • Loans
  • 3P Payor Rule
  • Property as Payment for Services
  • Fees Collection
A

Expense Advances and Loans

  • ABA does not allow Ls to make loans to C except for lit expenses whn rep’ing an indigent C, or in a contingent fee case.
  • CA laws allow Ls to make loans to Cs for expenses outside of lit if the payments are repaid, not gifts, and L and C sign a written loan a/ment. H,T

U/ [B], a L may advance ct costs and other lit expenses, the repayment of which may be contingent on the outcome. U/ U/ [B], a L may pay ct costs and lit expenses on behalf of indigent C.

ABA does not require a written a/ment to advance expenses.

In CA, a written fee a/ment must incl. (1) basis of compensation, incl. hrly rates, statutory fees, and other charges, (2) general nature of the legal services provided, and (3) L and C contractual responsibilities. H,T

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18
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
    • Former Firm Lawyer
  • ​Imputed Disqualification
    • Imputed Disqualification
A

U/ ABA, a L must not rep a C in a matter in which the L participated personally and substantially as a govt officer or employee, unless the appropriate govt agency gives IWC, except as permitted by law. [In CA, a former crim prosecutor may not participate on the defense of the same case.] H,T

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19
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

3P Payor Rule: A L must not accept compensation from a 3P for rep’ing a C unless (1) C gives I,WC, (2) 3P does not interfere with the Ls independence or the C rep, and (3) arrangement does not compromise the C’s conf info. H,T

Organizational Cs: A L mst act in the best interest of the entity.

  • U/ ABA, whn L working for a org discovers misconduct tht might dmge the org, L must report tht misconduct up the chain of authority w/in the org. ABA also permits the L to report info to appropriate prsns outside org if highest authority w/in the org fails to take apprpriate action.
  • In CA, such reporting w/in org is permissive, not compulsory. Reporting o/side org is not permitted; h/e if the fed law requires or allows L to report out, fed preemption means L cannot be held liable for doing so.
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20
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

A L cannot limit liability whn entering into a L-C r/ship. The ABA allows limits on liability if C is rep’d by other independent legal counsel whn a/ment was made.

In CA, a L cannot limit malprac liability even if work is pro bono.

A L may only settle a malpractice suit with a C after providing the C with written advice to consult outside indep legal counsel and giving C opp to do so.

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21
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

A L shall not solicit substantial gifts from Cs or draft a legal instrument (will, trust or deed) for a C that will give the L (or a prsn related to the L) a substantial gift UNLESS the L and C are related.

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22
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

U/ [B], a L cannot during trial assert p.k. of facts in issue other than when testifying as a W or state a personal opinion at to the W’s credibility.

U/ [B], a L shall nt act as an advocate at a trial in which the L is likely to be a necessary W, unless

  1. the testimony relates to an uncontested issue, or
  2. to the nature and value of legal services, or
  3. disqual of the L would result in substantial C hardship.

[In CA, law is the same as ABA for jury trials w/out exception #(3). In lieu of exception (3), CA allows rep if a L obtains C’s IWC]. H,T

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23
Q
  1. Lawyer-Client R/ship
  2. Duty of Loyalty
    1. Potential Conflicts
    2. Actual Conflicts
    3. f
    4. Counseling C to Act / Advising/Assisting in Violaion of Law
    5. Use of Confidential Info to C’s Disadvantage
    6. Propreity Interest in SM of litigation
    7. Business Transactions with C’s
    8. Publications Rights Contract
    9. Expense Advances and Loans
    10. Serving in Legal ServicesOrganization
    11. Former Govt Lawyers in Private Practice
    12. Third Party Interference
    13. Limiting Malpractice Liability
    14. Gifts from Clients
    15. Close R/ship with Adversary Attorney
    16. Trial Counsel is Necessary Witness
    17. Consensual Sexual Relations
A

U/ ABA, a L may nt hve sexual relations w/ a C unless a consensual r/ship existed whn the C-L r/ship commenced. H,T

In 2018, Cal updated its rule on sexual relations with a C to align with the ABA. CA now imposes a strict prohibition on sexual relations with a current C who is not a spouse or registered domestic partner, unless a consensual sexual r/ship exists b/w them when the A-C r/ship commences. H,T

24
Q

II. Confidentiality

A. Duty of Confidentiality

  • Exceptions

​B. Attorney-Client Privilege

C. Work Product Doctrine

D. Representation of Multiple Clients

A

U/ [B], a L mst not gnrly reveal any info relating to the rep of a C. Exceptions permit a L to reveal conf info relating to the rep of a C when:

  1. u/ [B], C gives L IC to do so (CA, consent mst be in writing),
  2. u/ [B], L is impliedly auth to reveal conf info to carry out the rep,
  3. u/ ABA, L cn disclose conf C comms if s/he reas believes it is nec to prevent a prsn’s reas certain death or GBH; u/ CA, L can disclose conf C info to prevent a crim act that is likly to lead to death or GBH if L first makes a GF effort to convince the C not to commit the crim act and, if C refuses, L informs C of the inteniton to reveal the C’s confidences,
  4. u/ ABA, a L may disclose conf C comms to prevent a crime or fraud likely to product sub fin loss to a psn, sla the C uses the L’s services to perpetrate the crime or fraud. There is no equiv excep in CA. H,T
  • Name H, A rep’d O previously and could not disclose info re that r/ship or his finances to F or H. Thus, A had a conf duty to O.
  • Name, Name, Name H, A owed a duty not to disclose CI re each of H, O and F to the other parties. Each party allowed the other parties to be in same room while discussing case. Thus, A violated her d of c.
25
Q

Duty to Communicate

Under ABA and CA law, a L must

A

U/ [B], a L mst (1) keep C prmptly infrmd of any decision or circ to whch th C mst prvde IC, and (2) reas consult w/ C about means by which to accomplush C objectives.

  • H, A should have communicated to O the p and a conflicts of rep’ing all 3 pts before meeting with them. Thus, A violated her duty to comm with O. *
  • H, L did nt reas consult with P about hw nt playing despite a valid and enforceable K, and ignoring a court order, affected his objective to re-negotiate salary. The prelim injuction req P to play under Kterms was likely uncx b/c forcing P to play might constitutue “inviluntary servitude” under the 13<span>A</span>. Yet, until its uncx’lity was judicially declared, P needed to comply with the court order. P could not raise the q of the order’s uncx in collateral proceedings on appeal from a judgement of conviction for contempt of the order by ignoring the order prior to challenging it with a court. *

U/ [B], a L shall explain a matter to the extent reas nec to permit th C to make informed decisions reg the rep AND shall:

  1. Prmtly inform the C of any decision or circ req C’s IC (incl, settlement offers, and where joint C’s, L mst inform each C of settlement offer and make sure the C’s agree on the diviosn of the settlement b4 accepting.
  2. Reas concult w/ C abt means by whch C’s objectives are to be accomplished,
  3. keep C reas informed about the status of the matter
  4. Promptly comply w/ reas requests for info, and
  5. Consult w/ C abt any relevant limitation on the L’s conduct whn the L knws that the C expects assistance not permitted by the Rues of Prof Conduct or other law.
26
Q

IV. Duty of Competence

A. General Duty

B. Duty of Diligence

A

A L mst act w/ the care, skill, prep, thoroughness, and dil of a reas L u/ the circs. To avoid violating the duty of comp, a L can (1) achieve competence through adequate prep, or (2) consult with a L of est competence in the field.

H, A was a [] att. No facts indicated A had experience in []. She could adequately achieve the requisite level of compt by prep or ass with [] counsel. Thus, A did not violate her duty of competence.

<em>H, L, an associate, acted with care, skill, and preparation of a reas L when he ressearched for a motion to compel. H/e, he lacked diligence and thoroughness when he told P that he “thought” the motion would be denied and “may” igve rise to sanctions. To avoid violating duty of comp, L needed to prepare more adequately to know with certainty the motion outcome, or follow instructions from P, a supervising partner with more experience. </em><em>Thus, L could follow P’s instructions to establish competence.</em>

27
Q

IV. Duty of Competence

A. General Duty

B. Duty of Diligence

A

A L hs a duty to diligently, promptly, and zealously pursue the matter of the C to completion. A L shld take whatever lawful and ethical measures are required to vindicate a C’s cause or endeavor.

28
Q

V. Property (Cash)

  1. Duty to Protect C’s property
  2. Duty to Promptly Notify and Deliver
  3. Duty to Withhold
  4. Duty to Keep Good Records
A
  1. Duty to Protect C’s property: A L mst safeguard her C’s prop. A C’s prop mst be id’d as sch and appropriately safeguarded.
    1. Money: A L mst deposit her C’s money in a sep C trust account. This incl both advances for fees or expecnses not yet incurred from the C and money received on the C’s behalf.
  2. Duty to Promptly Notify and Deliver: Upon receiving funds or other prop in ewhich a C or 3P has an intrst, a L shall promp\tly notify the C or 3P.
  3. Duty to Withhold: If the C disputes a fee or a 3P hs a lawful claim against C prop in the L’s possession, the L mst withhold the disputed portion in the sep C trust account.
  4. Duty to Keep Good Records: A L mst keep good records, render accountings, notify C of money received on her behalf and to promptly pay money due to her. In CA, mst keep records for 5yrs after final distribution and make records avail to State Bar for audit.
29
Q

FINANCIAL RESPONSIBILITY

  1. Fee Agreement
  2. Unreasonable / Unconscionable Fees
  3. Contingency Fees
    1. Fee Splitting with Lawyers (ABA v CA)
    2. Fee Splitting with Non-Lawyers
    3. Referral Fees (ABA v CA)
    1. Retainers
    • Expense Advances
  • Loans
  • 3P Payor Tule
  • Property as Payment for Services
  • Fees Collection
A

Fee Agreement - U/ [b], contingent fee a/ments must be in writing & state the method by which the fee is to be determined. In CA, whr it is reas fores total expense to a C, incl. any L fees, will exceed $1k, the services K mst be written and incl. (1) basis of comp incl. hrly rates, stat fees, & other charges, (2) gnrl nature of legal services provided, & (3) L & C K’ual responsibilities.

Unreasonable / Unconscionable

ABA, L cannot charge unreas fees. Factors in determining whther fee is reas incl. (1) skill, time, experience, & difficulty, (2) likelihood rep will preclude L from accepting other employment, (3) customary fee in the locale for the kind of work, (4) amount involved & results obtained, (5) time limits imposed by C or circs, (6) nature & length of the C prof. r/ship, (7) L’s experience, reputation, and ability, and (8) whether fixed or contingent fee.

CA prohibits unconscionable fees, & uses factors similar to ABA to determine uncon fees, in add to following factors: (1) whthr L engaged in “fraud or overreaching” in negotiating or settling the fee, & (2) whthr L has failed to disclose mat facts.

30
Q

FINANCIAL RESPONSIBILITY

  1. Fee Agreement
  2. Unreasonable / Unconscionable
  3. Contingency Fee
    1. Fee Splitting with Lawyers (ABA v CA)
    2. Fee Splitting with Non-Lawyers
    3. Referral Fees (ABA v CA)
A

A CF req the C to pay a fee only if there is a favorable outcome.

U [B], a CF a/ment must (1) be in w, ~ by C, & (2) state the method by which the fee is calculated, incl. (a) whether $ deducted b4 or after the fee, (b) % to L, & (c) expenses C liable for regardless of outcome. In CA, a/ment mst also (3) state the L’s % is negotiable & (4) how other, non-covered expenses will be paid.

Prohibited Cases:

U/ [B], CFAs are prohibited in criminal and domestic relations cases.

31
Q

VI. Fees

  1. Financial Integrity
    1. Non-Contingent Fees
      1. ​Unreasonable [Unconscionable] Fee
    2. Contingent Fee
    3. Fee Splitting with Lawyers (ABA v CA)
    4. Fee Splitting with Non-Lawyers
    5. Referral Fees (ABA v CA)
A

Fee Splitting with Ls:

ABA allws fee splitting sla (1) C consnts (2) total fee is reas, and (3) fee is proportional to the work done. H,T

In CA, a L shall not divide fees with a L who is not a partner, ass., or s/holder, unless (1) C consnts in W at time of a/ment or asa reas prac after full disclsre of the fact a division of fees will be made, and (2) total fees are nt increased solely by reason of a division and nt uncon; (3) C is infrmd of the id of fee-splitting Ls and terms of division, and (4) the Ls enter into a written a/ment to divide the fee. H,T

Fee Splitting with Non-Ls: U/ [B], a L or LF may not share fees with non-Ls, except via a compensation plan, even though based on a profit-sharing arrangement. H,T

32
Q

VI. Fees

  1. Financial Integrity
    1. Non-Contingent Fees
      1. ​Unreasonable [Unconscionable] Fee
    2. Contingent Fee
    3. Fee Splitting with Lawyers (ABA v CA)
    4. Fee Splitting with Non-Lawyers
    5. Referral Fees (ABA v CA)
  2. Attorneys Fees
  • Fee Agreement
  • Contingent Fee
  • Unreasonable [Unconscionable] Fee
  • Retainers
  • Fee Splitting with Lawyers (ABA v CA)
  • Fee Splitting with Non-Lawyers
  • Referral Fees (ABA v CA)
  • Expense Advances
  • Loans
  • 3P Payor Tule
  • Property as Payment for Services
  • Fees Collection
A

U/ ABA, a L shall not give anything of value to a person for recommending the L’s services, except a L may refer Cs to another L or a non-L pursuant to an a/ment that provides for the other person to refer Cs to the L, if (1) the reciprocal referral a/ment is not exclusive, and (2) the C is informed of the existence and nature of the a/ment. H,T

In CA, a L may pay a referral fee to an outside L who refers a case if (1) C knows all the terms and consnts in W, and (2) total fee is nt increased and nt unconscionble b/c of the referral. H,T

33
Q

VII. Other Duties To Profession

  1. No Duty to Accept Representation
  2. Duty to Reject
  3. Duty to Withdraw
  4. Duty As Adviser
  5. Duties of Prosecutors
  6. Duty of Dignity and Decorum
  7. Duty to Expedite Cases
  8. Violate Court Rule or Order
  9. Discovery Abuse
A
  1. No Duty to Accept Rep: A L has no duty to accept rep, they are free to accept or reject any case. Exceptions incl. (1) a L has an ethical duty to accept ct appointed rep unless there is good cause (rep requires L to violate law or ethical rule, rep wld impose unreas fin burden on L, or L’s prsnl feelings wld prevent effec rep), (2) a L shld accept the cases of defenseless or oppressed if only reason to refuse is selfish, and (3) ABA encourages 50hrs of pro bono work for indigent Cs.
  2. Duty to Reject: A L mst reject rep if (1) rep requires L to violate a law or ethical rule, (2) P’s motive is to harass or maliciously injure, (3) L knows P is pursuing a factually or legally frivolous claim (h/e a claim is nt friv just b/c law is against L’s pos if GF effort to change, modify or extend the law), (4) L is incompetent, (5) prsnl feelings wld prevent effec rep, or (6) mental or physical condition will mat impair the rep.
34
Q

VII. Other Duties To Profession

  1. No Duty to Accept Representation
  2. Duty to Reject
  3. Duty to Withdraw
  4. Duty As Adviser
  5. Duties of Prosecutors
  6. Duty of Dignity and Decorum
  7. Duty to Expedite Cases
  8. Violate Court Rule or Order
  9. Discovery Abuse
A

Gnrly, C controls the objec of rep, and makes substantive decisions, L controls means (tactical decisions) to accomplish those objec, BUT mst consult with the C as to means by which the objectives are pursued.

A L cannot counsel a C to engage (or assist C) in conduct L knows is crim, fraudulent, or a violation of any law, rule, or ruling of a tribunal (CA only). Notw/standing the above, a L may:

(1) discuss legal conseq of any proposed course of conduct with a C; AND (2) counsel/assist C to make a GF effort to determine the validity, scope, meaning, application of law, or (for CA only) application of a rule/ruling of a tribunal.

+, in CA, L is permitted to advise and assist a C with complying with Ca laws even if such laws conflict with Fed or Tribunal law.

35
Q

Special Duties of Prosecutors

A

U/ [B], a Pros. is nt only an advocate, but a minister of justice. The Pros’s respons incl. [only mention those that apply]

(1) lay charges only whn supported by probable cause,
(2) ensure the accused is afforded all Cx due process rights,
(3) disclose to def and ct all knwn exculp ev tht tends to negate guilt or mit an offense,
(4) assure accused is advised of right to counsel and give reas opp to obtain counsel,
(5) nt attempt to obtain waiver of pre-trial rghts frm an unrep’d accused sch as rght to a prelim hearing,
(6) nt subpoena L in grand jury or other crim proceeding to present ev abt a C unless reas believes (a) not priv’d, (b) essential, and (c) no feas alternative,
(7) disclose new, credible, material ev, creating a reas likelihood that a convicted D did not commit the offense; if conviction w/in the pros’s jx (a) disclose the ev to the D, unless the ct otherwise instructs, (b) investigate to determine wrongful conviction, and (c) remedy a conviction when ev is clear and convincing,
(8) investigate leads objectively.

36
Q

Special Duties of Prosecutors

  • Special Duties of Prosecutors
  • Trial Publicity
A

U/ ABA/CA law, a L participating in litigation is not permitted to make an extra-judicial statement (1) the L knows or reas should know will be disseminated by means of public communication, and (2) will have a substantial likelihood of materially pj’ing an adjudicative proceeding.

U/ ABA, a Pros. must use reas care to prevent law enforcement personnel, investigators, or other persons associated with the crim case from making extrajudicial statements the pros. is prohibited from making. H,T

37
Q

VII Other Duties to Profession

  1. …
  2. Duty of Dignity and Decorum
    1. ​General
    2. Maintaining Integrity of Legal Profession
    3. Preserve Decorum of Tribunal
A

A L has the duty to preserve and protect the dignity of the ct.

Maintaining Intregrity of Legal Profession

U/ CA law, L mst nt knowingly assist in, solicit, or induce any vioaltion of the RoPC or CA Business and Professions Code.

U/ ABA, it is prof. misconduct for L to engage in conduct (1) pj to adminn of jstice, (2) involving dishnsty, fraud, deciet, or misrep, or for a L to (3) attempt to violate ABA.

<em>H, X was dishonest, deceitful, or misrp’d the law or facts when she called O to imply she xould file a discrim suit, for the improper purpsoe of putting pressure on team to re-neg P’s contract, when X and Y both agreed there wasn’t a basis for the complaint. X filed a counterclaim to get O’s attention for tortios interference when P’s contract was valid and enforcabnle. X’s conduct brough disdaim to the legal profession and amin of justice because her conterclaim was frivolos. </em>

38
Q

Duty of Candor to the Tribunal

A

ABA, a L may nt knowingly (1) make flse s/ment of mat fact or law to a tribunal or fail to correct a false s/ment or mat fact or law prev made, (2) fail to disclose to a tribunal controlling legal authority knwn to L to be directly adverse to C’s pos and nt disclosed by opp counsel, or (3) offer ev L knows is false.

CA, in presenting a matter to a tribunal, a L shall (1) employ, for the purpsoe of maintianing the causes confded to the L, such means only as are consisitent with truth, (2) not seek to mislead the judge, judicial officer, or jury by a fasle statmenet of fact or law, (3) not intentially misquote to a tribunal the language of a book, statute or deicsion, (4) nt, knwing in its invalidity, cite as authoriy a deicsion rtat hase been overruled or a statute that has been repealed or declare uncx, and (5) not assert prsnl knowedlge of the facts at issue, expect when testifying as a w.

California law req a L to employ only means consistent with the truth, and never seek to mislead any judicial officer by a false s/ment of fact or law. H,T

39
Q
A
40
Q

VII Other Duties to Adversary

  1. Duty of Fairness to Opposing Party and Counsel
  2. Threatening Disciplinary Charges (CA only)
  3. Communications with Rep’d Persons
  4. Return Materials Mistakenly Delivered
A

Duty of Fairness to Opposing Party & Counsel

U/ ABA, a L shall nt fail to make reas diligent effort to comply w/ legally proper discovery request by an opp pty. In CA, a L shall nt supress ev L or Ls C hs legal ob to reveal or produce.

<em>H, L knew doc requested by Smith had not been produced, and of no basis to refuse production. U/ ABA and CA , L shld prdce doc, and nt follow P’s instructions to interpose …</em>T, L shld produce the doc to avoid violationg duty of fairness to opposing party and counsel.

Threatening Disciplinary Charges: CA law prohibits Ls from, and sbjcts thm to discipline for, threatening to bring crim, admin, or disciplinary charges to obtain an advantage in a civil dispute. There is no similar prohibition under ABA.H, B …. B appeared to threaten disc action against A to obtain an advantage in the class action, a civil dispute. T, B could be subject to discipline under CA law.

Comms w/ Persons Rep’d by Counsel: In course of a rep, a L mst nt communicate abt th subject of rep w/ a prsn (whthr or nt a pty to the proceeding) the L knows is rep’d by another L in the matter, unless L (1) hs consent of other L, or (2) is auth by law to do so. U/ ABA, consent of a rep’d organization’s L is not required for communications with a former constituent.

CA – In Ca, the L may communicate with an unrepresented former employee or officer of an entity without consent & knowledge of the attorney representing the entity, but may not inquire about privileged communications the former officer or employee participated in while with the entity.

Return Materials mistakenly Delivered:

41
Q

VII Othe Duties to Court

  1. Duty of Candor and Fairness
    2.
A
42
Q

VIII. Regulatory Controls

  1. Advertising
    1. False or Misleading (ABA v CA)
    2. Identity
    3. Clients’ Names
    4. Advertising Material Labeling (ABA v CA)
    5. Specialization
    6. Special CA Restrictions
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

Advertising

False or Misleading

  • ABA: permts a L to advrtse usng any frm of pblc comm abt th L’s servces tht is nt false or misleading. H,T
  • In CA, thse L comms are presumed flse or misleading: (1) comms delivrd to a pot. C in the hospital or suffring frm phys or mental stress, (2) mailings nt clearly labeled as ads that clearly seek fee-paying work, and (3) comms containing testimonials or endorsements w/out a disclaimer they are nt a promise about the results in the pot C’s case. H,T
43
Q

VIII. Regulatory Controls

  1. Advertising
    1. False or Misleading (ABA v CA)
    2. Identity
    3. Clients’ Names
    4. Advertising Material Labeling (ABA v CA)
    5. Specialization
    6. Special CA Restrictions
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

Identity: U/ ABA, all ads mst incl. the name and office address of at least one L or LF. H,T

Clients’ Names: U/ ABA, regularly-rep’d C’s names may be communicated in an ad with consent. H,T

Ad Material Labeling:

  • ABA allws advertising circulars sent in the mail targeted to thse knwn to be in need of partic legal services, the outside envelope mst incl. the words “Ad Material”. H,T
  • In CA, mailings not clearly labeled as advertising that seek fee-paying work are presumed false or misleading. H,T
44
Q

VIII. Regulatory Controls

  1. Advertising
    1. False or Misleading (ABA v CA)
    2. Identity
    3. Clients’ Names
    4. Advertising Material Labeling (ABA v CA)
    5. Specialization
    6. Special CA Restrictions
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

Specialization: In an ad, a L is permitted to state the L “specializes in” a field of law ala the s/ment is not false and misleading, but may not imply or state s/he is certified as a specialist in a field of law, unless s/he is certified by an org approved by a state authority or accredited by the ABA, and identifies the certifying org name. H,T

Special CA Restrictions: CA laws prohibt ads that contain [(1) guarantee or warranty of the case outcome, (2) words or symbols that suggest quick cash or settlement, (3) L or C impersonation w/out disclosing it is an impersonation, (4) accident or other event dramatization w/out disclosing it is dramatization, and (5) contingent fee offer that does not warn a C who loses a case must still pay litigation costs if that is the arrangement.] H,T

45
Q

Solicitation

  • Agents
  • Direct Mail
  • Prospective Clients
A

U/ ABA/CA law, a L cannt solicit fee-generating e/ment by in-prsn, live tlphne, or real-time electronic contact frm a specific prospec C whn the L’s significant reason for doing so is pecuniary gain, unless the prsn solicited (1) is a L, or (2) has a family, close personal, or prior prof. r/ship. H,T

Agents: A L must not use agents to solicit in a manner the L cannot. H,T

Direct Mail A L may send a truthfl and non-deceptive targtd ltr to a pot C knwn to face a partic legal problem. H,T

Prospect Cs; A L must not coerce, harass, or solicit prosp Cs who indcte thy do nt wsh to be solctd. H,T

46
Q

Attorneys Fees

  • Fee Agreement
  • Contingent Fee
  • Unreasonable [Unconscionable] Fee
  • Retainers
  • Fee Splitting with Lawyers (ABA v CA)
  • Fee Splitting with Non-Lawyers
  • Referral Fees (ABA v CA)
  • Expense Advances
  • Loans
  • 3P Payor Tule
  • Property as Payment for Services
  • Fees Collection
A

U/ [B] a L may collect an advance fee in the form of a retainer, but unless the advance fee is a true retainer to reserve services, the L must return any unearned portion. H,T

47
Q

Conduct Involving Deceit, Dishonesty, Fraud, or Misrepresentation

A

U/ ABA and CA law, it is prof. misconduct for a L to engage in conduct involving deceit, dishonesty, fraud or misrep. H,T

48
Q

Avoid Frivolous Claims

A

U/ ABA, a L may nt bring or defend a proceeding, or assert, or controvert an issue, unless there is a basis in law or fact that is nt frivolous. An action is friv if the L is unable to make a GF argument for a mod, exten or reversal of existing law. H,T

CA law does nt allow a L to accept, seek or continue employment if the L knows osk the objective of emplyment is to present a defense or claim in litigation that is nt warranted under existing law, unless it can be supported by a GF argument for a mod, exten, or rev of existing law. CA law forbids a L from maintinging or counseling an action, proceeding, or defense that does nt appear legal or just, except for the defense of a prsn charged w/ a public offence. H,T

49
Q

VIII. Regulatory Controls

  1. Advertising
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

U/ [B], a L may nt assist another person in the unauth practice of law. A L may employ the services of paraprofessioanls and delegate functions to them, ala the L supervises and retains repsonbilitity for their work.

Considerations in det whthr an activity constitutes the prac of law incl: (1) activity involves legal knowledge and skill bynd tht whch the av layprsn possesses, (2) activity constitutes services concerning binding legal rights or remedies, and (3) activity is trad perf by Ls. Cts find these activiteis, whn done on behalf of anther, to constitute law practice (a) appearing in jud proceedings, (b) engaging in settlement negotiations, and (c) drafting docs tht affect sub legal rights or obligations.

H, A unlikely supervised K’s work because she was incompetent. A filed a counterclaim K primarily drafted. Drafting counterclaims was an activity a L ordinarily performed b/c counterclaim afftected the substantial legal rights or obligations of P. K likely drafted counterclaim using legal knowledge and skill, rather than fill in blacnks on a form. Drafting and suggesting questions to ask at the deposition was an activity a lawyer performed because what deposition questions to ask involved legal knowlefge and skill beyong that which the averager lawperson possesse.d

50
Q
  1. VIII. Regulatory Controls
  2. Advertising
  3. Solicitation
  4. Unauthorized Practice of Law
  5. Duty Not to Go into a Business with a Non-Lawyer
  6. Law-Related Services
  7. Multi-Jx Practice
  8. Reporting Misconduct
  9. Subordinate Lawyers
  10. Responsibilities of Partners, Managers & Supervisory Lawyers
A
51
Q

VIII. Regulatory Controls

Advertising

False or Misleading (ABA v CA)

Identity

Clients’ Names

Advertising Material Labeling (ABA v CA)

Specialization

Special CA Restrictions

Solicitation

Unauthorized Practice of Law

Duty Not to Go into a Business with a Non-Lawyer

Law-Related Services

Multi-Jx Practice

Reporting Misconduct

Subordinate Lawyers

Responsibilities of Partners, Managers & Supervisory Lawyers

A
52
Q

VIII. Regulatory Controls

Advertising

False or Misleading (ABA v CA)

Identity

Clients’ Names

Advertising Material Labeling (ABA v CA)

Specialization

Special CA Restrictions

Solicitation

Unauthorized Practice of Law

Duty Not to Go into a Business with a Non-Lawyer

Law-Related Services

Multi-Jx Practice

Reporting Misconduct

Subordinate Lawyers

Responsibilities of Partners, Managers & Supervisory Lawyers

A
53
Q

VIII. Regulatory Controls

  1. Advertising
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

ABA req a L who has knwldge of a violation of the ABA MR tht raises a Q as to any Ls honesty, trustwrthness, or fitness as a L to inform the approp prof authority. CA does nt req a L to report misconduct by another L.

<em>H, B, counsel for _, heard the defense A planned to assert and … She believed asserting the defense violated _. Though A served [did x], he never [engaged in any conflict of interest]. T, B was not required to report A to state bar u/ ABA or CA law.</em>

54
Q

VIII. Regulatory Controls

  1. Advertising
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Lawyers
A

A L shall comply w/ PR Rules notwhithstanding the L acts at the direction of another prsn. A subord L does not vioate Rules if subordinate acts in accordance w/ a supervisory L’s reas resolution of an arguable Q of professional duty.

In CA, the subordinate mst comm prof. j/ment to supervisor if s/he believes the supervisor’s proposed resoultion violates the Rules.

<em>Here, P, a partner, supervised L, an associate at ABC. P instructed L to file a motion to compel. Though L, a subordinate L, acted at P’s direction, L needed to comply with the Rules. After researching the motion, L “thought” the motion would be denied and “may” give rise to sanctions. P’s instructions to file the motion appeared reasonable since L did not know with certainty the motion would be denied or that sanctions would result. The Q in the motion could not reasonably be answered only one way, and P had more experience. In CA, L needed to communicate his prof. judgment to P before following P’s instructions, but the facts did not indicate L believed P’s instructinos violated the Rules. </em><em>Thus, P could ethically follow P’s instructions to file the motion under both ABA and CA law.</em>

55
Q

VIII. Regulatory Controls

  1. Advertising
  2. Solicitation
  3. Unauthorized Practice of Law
  4. Duty Not to Go into a Business with a Non-Lawyer
  5. Law-Related Services
  6. Multi-Jx Practice
  7. Reporting Misconduct
  8. Subordinate Lawyers
  9. Responsibilities of Partners, Managers & Supervisory Ls
A

U/ [B], partners and supervising Ls mst ensure non-Ls employed or retained by, or associated with, the L or LF conduct themselves in a manner compatible with the rules of PR. A L is responsible for overseeing the work of non-L assistants, and is subject to discipline, if the L orders or ratifies wrongdoing.

<em>H A re-hired K, a non-lawyer. Though K was a disbarred L with experience representing professional athelests and represented P in the past, A had an obligation to supervise K. It was improper for K to prepare the counterclaim when the K was valid and enforceable. By filing the counterclaim, A ratified K’s wrongdoing. K sat next to Anne at the despoition, passing notes after drafting the questions. A was unable to oversee K’s work since A lacked competence to prepare for, and take the depsoition.</em>

56
Q

6A Ineffective Counsel

A

The right to counsel encompasses the right to be assisted by a reas competent attorney. An attorney is ineffecitve when (1) rep falls below an objective reasonableness standard, and (2) the deficient perf pj the D, resulting in an unreliable or fundamentally unfair outcome in the proceeding. H,T

57
Q

VII. Other Duties To Profession

  1. No Duty to Accept Representation
  2. Duty to Reject
  3. Mandatory Withdrawal
  4. Duty As Adviser
  5. Duties of Prosecutors
  6. Duty of Dignity and Decorum
  7. Duty to Expedite Cases
  8. Violate Court Rule or Order
  9. Discovery Abuse
A

Mandatory Withdrawal

ABA: A L mst w/draw from rep, and is sbjct to disc if failure to do so wld result in violating ethics rules or other law. U/ ABA, a L is req to w/draw whn phys or mental condition mat impairs ability to represent the C.H,T

CA: The L mst w/draw if (1) s/he knws (osk) continued employment will violate CA rules of PR, (2) the L’s mental or physical condition renders it unreas difficult to carry out e/ment effectively, and (3) a L knws osk C is asserting a claim or defense w/out PC and for the purpose of harassing or maliciously injuring any person.H,T

Essay Rules (14 decks)

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