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Bar Study Supplemental Cards > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Duty of Loyalty

A

A lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of his client above all other interests and to avoid any conflicts of interest.

Always write this on the exam! Duty to Avoid Conflicts of interest falls within this

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2
Q

Duty to avoid conflicts of interest

A

A lawyer must avoid all conflicts of interests with his client. Actual conflicts (current); potential (future) conflicts of interest

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3
Q

Concurrent conflict of interest general rule

A

A lawyer may not represent a client where there is a conflict of interest. A concurrent conflict of interest can arise in several ways: between current client, between current client and another,

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4
Q

Between current clients

A

A concurrent conflict of interest exists if the representation of one client is directly adverse to another client

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5
Q

Between current client and another

A

A concurrent conflict of interest exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person or by a personal interest of the lawyer

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6
Q

Exception to concurrent conflicts of interest

A

A lawyer may still represent the client despite a concurrent conflict if:

1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client without an adverse affect; and
2) the representation is not prohibited by law;
3) the clients are not asserting a claim against each other in the same litigation; and
4) each client gives informed written consent.

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7
Q

California No Risk Limitation

A

Even if there is no significant risk that lawyer’s representation of the client will be materially limited, a lawyer must still provide written disclosure of the relationship to the client and meet the exception requirements if:

  1. the lawyer has reason to know or knows that another lawyer in the lawyer’s firm has any kind of relationship to a party or witness; or
  2. the lawyer knows or reasonably should know that another party’s lawyer is related to lawyer, lives with lawyer, is a client of lawyer or one in his firm, or is in an intimate relationship with the lawyer.
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8
Q

Types of Conflicts of Interest

A
  1. Conflict between two clients
  2. Conflict between a client and a third party
  3. a conflict between the client and the lawyer’s own personal interests
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9
Q

Conflicts between two or more clients

A

exists if there is a significant risk that the representation of a client will be materially limited by the lawyer’s loyalty/responsibility to another client or former client

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10
Q

Insurance Conflict (California Rule)

A

Lawyers are permitted to represent both insurers and insureds when the insurer has the contractual right to unilaterally select counsel for the insured, resulting in no conflict of interest. This inherent conflict is deemed not so, by statute.

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11
Q

Corporate/organizational client

A

A lawyer employed by an organization or corporation represents the organization/corporation and must act in the best interest of the organization/corporation.

.

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12
Q

When can a lawyer also represent the organization’s constituents?

A
  1. A lawyer may also represent the organization and its officers, directors, employees, share-holders, or other constituents if the requirements for the exception to represent those with concurrent conflicts are met
    * Always discuss, however, the risk of a duty of confidentiality violation since the lawyer can accidentally disclose information from one client to the other in these situations*
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13
Q

Reporting Misconduct Within a Corporation/Organization to a Higher Authority

A

If the lawyer knows (or in CA reasonably should know) that:

  1. an officer employee, or other person associated with the organization is engaged in (or intends to engage in) action that is a violation of a legal obligation or a law reasonably imputable to the organization
    and
  2. is likely to result in substantial injury to the organization, the lawyer shall report up, and refer the matter to a higher authority int he organization,
    * unless the lawyer reasonably believes that it is not in the best interest of the organization to do so.
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14
Q

Failure to act by higher authority

A

if the highest authority fails to take action and the lawyer reasonably believes the violation will result in substantial injury to the organization:

  1. ABA: The lawyer may report out and reveal information, even if confidential, if such disclosure is necessary to prevent injury.
  2. CA: the lawyer may not report out and disclose information outside the organization if it will violate the duty of confidentiality; rather the lawyer should:
    - urge reconsideration of the matter to the higher authorities within the organization,
    - resign from representation, or
    - withdraw from representation subject to the narrow exception: death/substantial bodily harm - may report out if NECESSARY to prevent a CRIMINAL act likely to result in death or substantial bodily harm
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15
Q

No aggregate settlements or guilty pleas

A

A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients or, in a criminal case, an aggregate agreement as to guilt or pleas, unless each client gives informed written consent

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16
Q

Former government employee

A

A lawyer who has formerly served as a government employee shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee unless governmental agency gives informed written consent.

Applies to judges, adjudicative officers, law clerks, arbitrators, mediators, to other third-party neutral persons

Impute disqualification also applies here

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17
Q

Imputed firm disqualification

A

A conflict for one attorney in a firm is imputed to all other attorneys in the firm, resulting in their disqualification, unless:

1) Conflict is based on a personal interest of the disqualified lawyer and does not present a significant risk of materially limiting the representation by the other firm attorneys; or
2) conflict is based on a former client at a prior firm, the conflicted lawyer is timely screened behind an ethical wall from any participation in the matter, and the former client is provided with written notice and certifications of compliance with the screening procedures, and in California the prohibited lawyer did not substantially participate in the same or substantially related matter
3) a client can waive any imputed disqualification with informed written consent

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18
Q

Lawyer leaves firm

A

When a lawyer has terminated an association with a firm, the firm may thereafter represent a person with interests materially adverse to those of a client represented by the formerly associated lawyer unless:

1) the matter is substantially the same; and
2) any remaining lawyer has confidential information that is material to the matter

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19
Q

Conflicts between a client and a third party

A

Exists if there is a significant risk that the representation of a client will be materially limited by the lawyers’ loyalty/responsibility to a third party (ex: third party pays the lawyer’s fees)

Ex: Compensation from third parties:

  • Can’t accept unless:
    1) client gives informed consent, (CA written consent);
    2) there is no interference with the lawyer’s independent professional judgment or with the l-c relationship; and
    3) information relating to the representation remains confidential
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20
Q

Conflicts between a client and the lawyer’s personal interest

A

Exists when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interest.

Examples:

  • where lawyer has a personal relationship with opposing counsel,
  • or deeply held beliefs in opposition to the client, or
  • a financial interest adverse to the representation
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21
Q

When can a lawyer’s personal relationship serves as the basis for a conflict of interest?

A

Can provide the basis for a conflict of interest with a client:

  1. opposing lawyer is lawyer’s relative, closely related by blood or marriage, they must obtain informed consent before representing clients in the same or substantially related matters

California rule: Extends rule above and requires written disclosures when: 1) one lawyer is the client of the other lawyer; two lawyers cohabitate; two lawyers have a personal intimate relationship

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22
Q

Lawyer’s personal beliefs

A

The lawyer may still represent the client despite any conflict with his personal beliefs, with full disclosure and informed written consent

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23
Q

Sexual Relations With Client

A

ABA Rule: A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the lawyer-client relationship commenced

CA: follows ABA rule and clarifies that the above rule does not apply to sexual relations with the lawyer’s spouse or registered domestic partner.

CA defines sexual relations as including sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.

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24
Q

Business Transactions with Clients

A

A lawyer shall not enter into a business transaction with a client or knowingly acquire an interest adverse to the client unless:

  1. the terms are fair and reasonable to the client,
  2. the terms are fully disclosed in writing to the client in an understandable manner (CA: also requires that the lawyer’s role in the transaction be fully disclosed in writing), and
  3. Client is advised in writing to seek independent counsel (CA: that the client is actually represented by an independent lawyer of the client’s choice), and
  4. the client gives informed written consent to the essential terms including whether the lawyer is representing the client in the transaction
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25
Q

Solicitation of Gifts

A

Creates a conflict between the client and the lawyer’s personal interests

  1. shall not solicit any substantial gift from a client or prepare an instrument that gives the lawyer, or a person related to the lawyer, a gift unless the lawyer/person is related to the client
  2. California additional exception: a lawyer may accept a gift if the client has been advised by an independent lawyer who has provided a certification of independent review, or if the gift is fair and there is no undue influence
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26
Q

Proprietary Interest

A

A lawyer shall not acquire a porprietary interest in the cause of action or subject matter of litigation unless:

  1. acquire a lien to secure the lawyer’s fees, or
  2. contract with a client for a reasonable contingency fee in a civil case
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27
Q

Financial Assistance/Advances to Clients

A

Creates a conflict between the client and the lawyer’s personal interest

ABA: A lawyer shall not provide financial assistance to a client in connection with litigation, with the exception of

  1. Contingency cases: can advance court costs and expenses of litigation in contingency cases, the repayment of which is dependent on the case outcome, or
  2. Indigent clients: can advance court costs and expenses of litigation

CA: can lend money to the client after employment, for any purposes, if the client promises in writing to repay the loan

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28
Q

Limiting Malpractice Liability

A

ABA: An attorney may not agree to limit the lawyer’s own liability to the client without advising the client unless client is represented by independent counsel

CA: do not allow a lawyer to prospectively limit liability to a client

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29
Q

Settlement of Legal Malpractice Claims

A

A lawyer shall not settle a claim or potential claim for malpractice liability with an unrepresented client or former client, unless:

  • that person is advised in writing of the desirability of seeking, and
  • is given a reasonable opportunity to seek, the advice of independent legal counsel
  • (or in CA: if they are in fact represented by independent counsel).
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30
Q

Duty to communicate

A

The lawyer shall:

1) promptly inform the client of any decision that affects the client’s informed consent
2) Reasonably consult with the client and keep him informed of the status of the case, including any settlement and plea offers, and
3) promptly respond to client communications and reasonable requests for information.

CA: can delay transmission of info if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others

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31
Q

Scope of Representation

A

Lawyer must abide by the client’s substantive decisions (settle, plea, waive jury trial, expenses, testify, appeal) after the lawyer has consulted with the client.

Lawyer is responsible for employing the appropriate legal strategy (motions, discovery, witness or evidence use)

*Always address duty to communicate as well

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32
Q

Duty of Confidentiality

ABA Rule

A

ABA: A lawyer shall not reveal information relation to the representation of a client except when:

1) client gives informed conset;
2) disclosure is impliedly authorized to represent the client;
3) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm
4) to prevent the client from committing a crime or fraud or to mitigate or rectify a crime or fraud committed by the client that has resulted, or is reasonably certain to result in, substantial injury to the financial interests or property of another and the client is or has used the lawyer’s services to do so
5) to comply with a court order, ethics rule, or statute
6) to secure legal advice about the lawyer’s compliance with ethics rules, or
7) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the conduct the client was involved in with the lawyer’s services (defend malpractice, or collect fees)

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33
Q

Duty of Confidentiality CA Rule

A

A lawyer shall not reveal information relating to the representation of a client without the informed consent of the client, except the lawyer may in the following situations:

  1. When necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm, however, the lawyer must:

A) first make a good faith effort to persuade the client not to commit the criminal act, and
B) inform the client of the lawyer’s ability to reveal the information; and
C) only reveal as much information as necessary to prevent the crime

  1. when compelled by law or court order
  2. to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or in defense of the conduct the client was involved in with the lawyer’s services
34
Q

Attorney-Client Privilege

A

An evidentiary privilege that allows a client to keep confidential all communications with his attorney, intended to be confidential, made for the purpose of facilitating legal services. Client can refuse to testify and prevent his attorney from testifying.

  1. only applies to communications, not physical evidence turned over to lawyer
  2. Presence of third party may serve to waive the privilege, unless where necessary

California Evidence Code: allows holder to stop eavesdroppers and other wrongful inceptors from revealing confidential information

-Only the client holds the privilege and the lawyer may assert it on the client’s behalf

35
Q

Corporations/Organization Attorney-Client Privilege*

Applies when the lawyer or client will be testifying about confidential communications and it only applies to those communications pertaining to the legal services.

A

Federal common law: Applies to employees/agents if authorized by the corporation to make the communication to the lawyer. [Survives death, exception: will contest]

CEC: Applies to employees/agents if the natural person to speak to the lawyer on behalf of the corporation, or the employee did something for which the corporation may be held liable and the corporation instructed her tot tell its lawyer what happened [Evaporates when the dead client’s estate has been fully distributed and his personal representatives has been discharged]

*Both rules yield the same result as applied

36
Q

Exceptions to A-C privilege

A
  1. Lawyer’s services were used to further crime of fraud; or
  2. relates to a dispute between the lawyer and client; or
  3. two or more parties consult on a matter of common interest and the communication is offered y one against another; or
  4. CEC only: Lawyer reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm
37
Q

Duty to Avoid Fee Misunderstandings

ABA General Rule

TENT FLAW

A

All fees must be reasonable considering the following factors:

  1. Time limitations imposed by the client or circumstances,
  2. Experience, reputation, and ability of the lawyer;
  3. Nature and length of the relationship with the client;
  4. Time and labor, novelty and difficulty, and skill required;
  5. Fee customarily charged in the locality for similar services;
  6. Likelihood that the acceptance will preclude other employment;
  7. Amount involved and results obtained; and
  8. Whether the fee is fixed or contingent.
38
Q

Duty to Avoid Fee Misunderstandings

CA General Rule

Furry Dogs Satisfy Anxious Clients

A

not unconscionable: Fees may not be illegal or unconscionable based on the same factors as reasonableness above for the ABA as well as these additional Cal. factors:.

  1. Whether the lawyer engaged in fraud or overreaching in setting the fee
  2. whether the lawyer failed to disclose material facts
  3. sophistication of both the lawyer and the client
  4. the amount of the fee in proportion to the value of the services performed;
  5. whether the client gave informed consent
39
Q

Fee agreements should state/identify

A
  1. How the fee is calculated,
  2. The general nature of the legal services, and 3.The responsibilities of the lawyer and the client.
    d. Writing requirement:
  3. ABA has no writing requirement for regular fee agreements.
  4. California requires all fee agreements over $1,000 to be in writing unless:

a. The client is a corporation,
b. The agreement was made during an emergency, c.The client waives the writing requirement in writing, or
d. The services are for a previous client with similar services in which the fee can be implied.

40
Q

Fee dispute arbitration

A

CA: requires a lawyer to submit to arbitration for fee disputes

ABA: encourages it

41
Q

Contingency Fee Agreement RUles

A

Fee is dependent on the outcome of the matter:

  1. be in writing
  2. signed by client (CA rules: agreement has to be signed by both the lawyer and client with each having a copy)
  3. state method by which the fee is to be determined, including percentages in the event of settlement, trial, or appeal
  4. State the litigation and other expenses to be deducted from the recovery, and
  5. State whether such expenses will be deducted before or after the contingent fee is calculated

(California rules look at how disbursements and costs will affect the contingency fee and client’s recovery and if the client will have to pay any related matters not covered by the agreement).

*Look for potential conflict of loyalty issues since the lawyer has a stake in the case outcome

42
Q

California Contingency Fee Rules

A

California contingency fee rules further require that the agreement state that the fee is negotiable (unless the claim is for negligence against a health care provider, in which case, the first $50,000 can be 40%, the next $50,000 would be 33.33%, the next $500,000 would be 25%, and 15% for any excess beyond that).

43
Q

Contigency Fee in domestic or criminal cases

A

A lawyer may not enter into a contingent fee agreement in a domestic relations matter (subject to a very narrow exception) or a criminal case.

44
Q

Fee Splitting

ABA Rule

A

Division of fees between lawyers who are not in the same firm may be made only if:

  1. The division is proportionate to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation,
  2. Client agrees to the division and consents in writing, and
  3. The total fee is reasonable.
45
Q

Fee Splitting CA Rule

A

Division of fees between lawyers who are not in the same firm may be made only if:

  1. The lawyers enter into a written agreement to divide the fee,
  2. The client consents in writing after full written disclosure that the fees will be divided along with the identity of the lawyers and the terms of the division, and
  3. the total fee is not increased simply because of the division of fees
46
Q

Fee sharing with non-lawyers

A

Not permitted.

47
Q

“Finders Fees” or gifts

A

ABA: Cannot give anything of value to a person for recommending the lawyer’s services unless it is a qualified referral service that has been approved by an appropriate regulatory authority

CA: allows a lawyer to make a gift of gratuity for past recommendation resulting in employment if the gift was not offered or given as consideration of a promise, agreement, or understanding that the referral would be forthcoming or continue in the future

48
Q

Referral Fees Between lawyers

A

A reciprocal referral agreement between lawyers is permissible if it is not exclusive and the client is informed of the agreement. A lawyer shall not give anything of value to a person for recommending the lawyer’sservices unless it is a qualified referral service that has been approved by an appropriate regulatory authority. (Cal. allows gifts for past recommendations that resulted in employment).

49
Q

Duty of Competence/Care

A

A lawyer shall represent the client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

50
Q

Additional California duty of competence rules:

A

a. A lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. (A lower standard than the ABA rule.)
b. A lawyer’s duty to act competently applies to learning and skill and mental, physical, and emotional ability.
c. Allow a lawyer to associate or consult with another competent lawyer, acquire the necessary skills to become competent before performance is required, or refer the matter to another competent lawyer (permitted by the ABA rule comments too).

51
Q

Duty of Diligence

A
  1. ABA: A lawyer shall act with reasonable diligence and promptness in representing a client.
  2. Cal.: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.
    a. Reasonable diligence means that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
52
Q

Duty to Safekeeping client’s property

A

A lawyer shall hold property of clients or third persons connected with a representation separate from the lawyer’s own property.

1.Safekeep client’s money: Lawyer has a
duty to keep client’s money separate and not commingle funds.

a.Client trust account: Funds must be kept in a client trust account and lawyer must keep accounting records for five years.

53
Q

Duty to Safekeepings Client’s Physical property

A
  1. Safekeep client’s physical property: A lawyer shall hold a client’s or third-party’s physical property that is connected with the lawyer’s representation separate from the lawyer’s own property.

The lawyer must:

a. Identify and label the property,
b. Put the property in a safe place and safeguard,
c. Maintain a journal of the property, and
d. Not commingle the property with the lawyer’s own property.

54
Q

Duty to Safekeepings Client’s Property Advance Payment

ABA

A

b. Advance payments
1. ABA: A lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred.

55
Q

Duty to Safekeepings a client’ property

Advance Payment

CA RULE

A
  1. Cal.: A flat fee paid in advance may be deposited in a lawyer’s operating account if the lawyer discloses to the client in writing that the client can require the fees to be deposited in a trust account until the fee is earned and the client is entitled to a refund of any amount not earned.
    a. If the fee exceeds $1,000 the client’s agreement to deposit the flat fee in the lawyer’s operating account needs to be in writing and signed by the client.
    b. Prompt payment: Lawyer must promptly pay the client any funds due (e.g., settlement proceeds). But if there is a contingency agreement, lawyer may hold back the funds he reasonably believes he is due
    c. Fee dispute with client: Lawyer must send any money not in dispute and leave disputed portion in trust account pending dispute resolution.

Cal. allows clients to have mandatory fee arbitration for fee disputes.

56
Q

Mandatory Withdrawal

A

A lawyer shall withdraw from representation when

a.The representation will result in a violation of the rules of professional conduct or other law,

CA Rule: when the representation will result in a violation of the rules of professional conduct, but not other laws

b. the lawyer’s mental or physical condition materially impairs the lawyer’s ability to represent the client or;
c. the lawyer is discharged (ABA rule and generally in California)
d. CA Rule: the lawyer knows or should know that the client is bringing an action without probable cause or to harass or maliciously injure a person

57
Q

Permissive Withdrawal

A
  1. The client insists on action involving the lawyer’s services that (per ABA lawyer reasonably believes) is fraudulent or criminal, or
  2. The client has used the lawyer’s services to perpetrate a crime or fraud (Cal. says lawyer reasonably believed it was a crime or fraud);
  3. The representation has been rendered unreasonably difficult by the client, or
  4. The client 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 the obligation is fulfilled, or
  5. Other good cause exists.
58
Q

b.ABA only permissive withdrawal:

n.

A
  1. The client has used the lawyer’s services to perpetrate a crime or fraud, or
  2. The client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement, or
  3. The lawyer can do so without material adverse effect on the interests of the client, or
  4. The representation will result in an unreasonable financial burden on the lawyer.
59
Q

California only permissive withdrawal:

A

In addition to the common rules above, California also permits withdrawal when:

  1. The client insists on presenting claims or defenses that cannot be supported by good faith, or
  2. The client knowingly and freely assents to the termination, or
  3. Lawyer’s mental and physical condition make it difficult to continue, or
  4. A continuation is likely to result in violation of the California Rules of Professional Responsibility, or
  5. The lawyer is unable to work with co-counsel.
60
Q

Duty to client upon withdrawal

A

When the court grants permission for withdrawal, the attorney shall protect the client’s interests, and:

a. Provide the client with reasonable notice to allow time to seek other counsel,
b. Surrender papers and property (the lawyer may retain a copy), and
c. Refund any advanced fees not yet earned.

61
Q

Advertising/Solicitation

A

A lawyer may advertise services through written, recorded or electronic communication, including public media, unless the prospective client has made it known to the lawyer of his desire to not be solicited. All advertisements must:

a. Be truthful. A lawyer shall not make false or misleading communications about the lawyer or the lawyer’s services.
b. Contain the name and office address of at least one lawyer responsible for its content.
c. Be labeled as advertising material: All written, recorded, or electronic communications must include the words “Advertising Material” on the outside of the envelope and at the beginning and end of any recorded or electronic communication. California rules allow the word “Advertisement” or similar words.

62
Q

No Direct Solicitation

A

A lawyer may not conduct in-person, live telephone, or real-time electronic contact for pecuniary gain, subject to the following exceptions:

a. Free legal services,
b. Family members,
c. Clients and former clients, or
d. Truthful, nondeceptive letters, labeled as advertising material, to people known to have a specific legal problem.

63
Q

California presumes these communications are in violation of the rules on advertising/solicitation

A

a. Express guarantees or warranties,
b. Testimonials or endorsements without a disclaimer that it is not a guarantee, warranty, or prediction of results.
c. “No fee without recovery” communications, unless it also states whether the client will be liable for costs (and any other statements that may be true but are misleading).

64
Q

Specialists

A

A lawyer shall not imply or state that he is certified as a specialist in a particular field of law, unless:

a. The lawyer has been certified as a specialist by the ABA or a state-approved organization, and
1. California rule requires it to be an organization certified by the Board of Legal Specialization or accredited by the California State Bar.
b. The name of the certifying organization is clearly identified in the communication.

65
Q

Unauthorized practice of law

A
  1. No practice with a non-lawyer: A lawyer shall not practice with or form a partnership or association authorized to practice law with a non-lawyer.
    a. A lawyer shall not share legal fees with a non-lawyer.
    b. A non-lawyer shall not direct or control the lawyer’s professional judgment.
66
Q

Liability for Other lawyer’s conduct

A
  1. Responsible for another lawyer’s ethical violation when the lawyer knowingly ratifies the conduct, or is a partner, or has direct supervisory authority over the other lawyer and could have mitigated the consequences
67
Q

Duty of fairness

A

A lawyer has a general duty of fairness to third parties, opposing counsel, and the court.

68
Q

Duty of fairness to represented parties and witnesses

A

A lawyer shall not communicate with parties or witnesses known to be represented by another lawyer unless the other lawyer has consented, or the communication is authorized by law or court order.

69
Q

Duty of fairness to represented corporation/organization

A

A lawyer must obtain consent of organization’s lawyer before speaking with:

  1. One who supervises or regularly consults with organization’s lawyer, or
  2. One who has the authority to obligate the organization regarding the matter at issue, or
  3. one whose conduct in the matter may be imputed to the organization
70
Q

Duty of fairness to the court

A

A lawyer shall not knowingly

a. Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made,
b. Fail to disclose adverse legal authority, or
c. Offer evidence that the lawyer knows to be false (perjury).
d. A lawyer who knows the client intends to engage in fraudulent or criminal activity shall take reasonable remedial measures, including, if necessary and permissible, disclosure to the tribunal.

71
Q

Duty of Fairness to opposing counsel

A

As to the opposing counsel and their party, a lawyer shall not:

a. Unlawfully obstruct evidence, or destroy or conceal (Cal. includes suppress) documents or other material;
b. Falsify evidence;

c.Promptly notify the sender of any materials inadvertently sent to lawyer (Cal. also states the lawyer should refrain
from examining the writing to the extent possible);

d. Knowingly disobey the court rules;
e. Allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial (Cal. says to not assert personal knowledge of facts);
f. ABA: Make a frivolous discovery request or fail to reasonably comply with discovery requests;
g. ABA: Request others to refrain from giving relevant information unless a relative or agent of client;
h. Cal.: Pay a witness to testify unless for reasonable expert fees, compensation for loss of time for witness to testify, or reasonable expenses incurred;
i. Cal.: Advise a person to secrete himself of leave the jurisdiction to avoid being available to testify.

72
Q

Duty of Decorum to the tribunal

A

A lawyer shall not:

a. Seek to influence jurors, judges, or other officials,
b. Communicate ex parte with such persons during proceedings,
c. Engage in conduct intended to disrupt proceedings, or
d. Communicate with jurors after they are discharged if they don’t want to communicate.

73
Q

Duty not to suppress evidence

A

CA: prohibit a lawyer from suppressing any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or produce

74
Q

Trial publicity rules

A

A lawyer who is participating in an investigation or litigation or a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding.

75
Q

A lawyer may state publicly

A

The lawyer may state

  • the claim, offense, or defense involved;
  • the information in the public records;
  • that an investigation is in progress;
  • requests for information;
  • warnings of danger;
  • and the status of the accused in a criminal case.
76
Q

Public Statements likely to be prejudicial

A

b.The following is likely prejudicial, and
a lawyer may not publicly state the following:

  1. Character, credibility, reputation, or criminal record of a party;
  2. Possibility of a guilty plea or contents of a confession;
  3. Opinion as to guilt or innocence of criminal defendant; or
  4. Information the lawyer reasonably knows is likely to be inadmissible.
77
Q

Special Duties of Prosecutors

A

Public prosecutors shall

a. Refrain from prosecuting charges that are not supported by probable cause;
b. Make reasonable efforts to ensure the accused is advised of the right to counsel;
c. Make timely disclosure to the defense of all exculpatory evidence;
d. Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused; and
e. Seek to remedy wrongful convictions.

78
Q

Duty to Report Ethical Violations

ABA Rule

A

ABA rule: A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority.

79
Q

Duty to Report Ethical Violations

CA

A

Permits, but does not require, the reporting of ethical violations of other attorneys.

But in CA, lawyers must report themselves when:

  1. Sued for malpractice 3 times in 12 months
  2. found civilly label for fraud, breach of fiduciary duty, etc.
  3. sanctioned more than $1,000
  4. charged with a felony
  5. convicted of a series crime
  6. disciplined in another jurisdiction
80
Q

Duty to the public/profession

A
  1. A lawyer should promote public confidence in the profession.
  2. No frivolous claims: A lawyer shall not bring or defend a proceeding unless there is a good faith basis in law and fact for doing so that is not frivolous.
  3. No criminal conduct: A lawyer shall not counsel a client to engage, or assist a client, in criminal or fraudulent conduct, but may counsel the client to discuss the legal consequences and assist them in making a good faith effort to understand the law.
  4. No harassing: The California rules prohibit a lawyer from seeking, accepting, or continuing employment to conduct a defense or case without probable cause or for the purpose of harassing or maliciously injuring any person.
  5. No threats: The California rules prohibit a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage in a civil dispute.

Bar Study Supplemental Cards (12 decks)

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