Professional Responsibility Flashcards
Attorney’s Duty of Candor to the Court and Fairness to Adversary
An attorney is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrep. cannot engage in conduct involving dishonesty, fraud or misrepresentation.
These duties can trump conflicting duties of confidentiality and loyalty.
Duty to State the Law Truthfully
Knowingly making a false statement of the law to the court is subject to discipline. Must be candid about the law.
- Duty to cite adverse authority, if from controlling jdx and…
- Presenting frivolous claim subject to disciplinary action.
Duty to Present Facts and Evid Truthfully
An attorney cannot make material misrepresentation or fail to correct a material misrepresentation previously presented
Client Perjury: Definition
Cannot knowingly facilitate client perjury.
**Civil case: Must refuse to let client testify if he’ll present false evid.
**Crim case: Crim Ds have 5th right to testify on their own behalf and 6th right to effective counsel.
Overall:
- Any obligation to correct ends w/ the proceedings (through time of appeal).
- Cannot counsel or assist a witness to testify falsely or to become “unavailable” to testify.
- May pay basic expenses of witnesses so long as not contingent on content.
Client Perjury: Procedure during trial (ABA and CA)
Counsel client to testify truthfully or not take the stand.
Try to withdraw from case. *CA: Seeking withdrawal is permissive, not mandatory.
If that fails, tell the judge.
*CA: Allow client to testify in narrative fashion but do not further the deception.
Biggest diff – CA more protective of client confidences!
Duty to Produce Evid (cross over w/ crim law)
Cannot knowingly withhold or tamper with physical evidence that attorney or client has legal obligation to reveal or produce.
*If attorney is reasonably certain something is a fruit or instrumentality of a crime, must turn it over to the authorities.
Duty to Produce Evid (cross over w/ crim law): Interference w/ evid
If attorney/investigator sees contraband but does not touch, no problem. If touches, may be compelled to produce/testify because attorney moved or altered it.
Duty to Produce Evid (cross over w/ crim law): Ex parte proceedings
Must reveal all relevant info, even if harmful to client’s case.
Duty to Produce Evid (cross over w/ crim law): Prosecutor’s Duty
Must timely disclose favorable evidence to defense, regardless of admissibility or impact on outcome.
Duty to Produce Evid (cross over w/ crim law): Mistaken Receipt
If attorney knows document was inadvertently sent, must stop reading and notify opposing counsel.
Duty to Uphold the Law
Permitted to disclose facts to prevent death or serious bodily harm.
Duty to Uphold the Law: Client Fraud
No duty to reveal client’s fraud, unless failure to do so would assist a crime.
However, keep in mind an attorney can be compelled to reveal info to prevent future crime or fraud, which is an exception to AC privilege.
Duty to Uphold the Law: Assistance in crime
Don’t counsel client on how to break the law.
*May withdraw if the client persists in a course of action that reasonably believe is criminal.
**Must withdraw if continued representation would require to commit or assist in committing a crime
Attorney’s Duty of Candor to the Court and Fairness to Adversary: List of duties
Duty to State the Law Truthfully
Duty to Present Facts and Evid Truthfully
Duty to Produce Evid
Duty to Uphold the Law
Attorney’s Duty of Candor to the Public and Dignity of the Profession – Advertising and Solicitation
State can regulate attorney advertising and solicitation subject to lawyer’s limited commercial speech rights under the 1st Amendment.
Attorney’s Duty of Candor to the Public and Dignity of the Profession – Advertising and Solicitation: 1st Amendment commercial speech test
A restriction of commercial speech is constitutional if:
*Gov asserts a substantial interest (dignity of profession),
**Reg directly advances that interest, and
***It is narrowly tailored.
Advertising
A lawyer’s communication w/ the public at large, or a segment of the public.
Advertising must not be false or misleading.
***CA: Presumes improper any ad that contains any guarantees, warranties, or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer that positive results/wins aren’t guaranteed.
Advertising must nor harass or solicit someone who has indicated that he wants to be left alone. Targeted direct mail OK but must label as “advertising material.”
Labeling & Records: Every ad must be labeled as ad, and dramatization must be noted. Must identify at least one lawyer responsible for contents. Must keep records of content and placement of ads for 2 years.
Solicitation
Refers to individualized contact with a layperson, initiated by the lawyer or his agent that is designed to entice him to hire the lawyer.
Do not seek professional employment for pecuniary gain by initiating a live, telephone, or real-time electronic contact with a prospective client with whom you have no prior professional, personal, or family relationship.
**CA: Presumes communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that you should know are not in the physical and mental state to exercise reasonable judgment.
Referrals
Payments for referrals are not allowed except for:
**Fee splitting with other lawyers under CA rules, or
**Small, ordinary fees paid to authorized lawyer referral services.
Attorney duties to the client (List)
Duty of confidentiality
Duty of loyalty/no conflicts of interest
Duty of financial integrity
Duty of competence
*Duty of diligence
*Duty to communicate
*Duty to withdraw from representationDuty of Confidentiality – Total silence
Rule: Cannot reveal anything related to the representation of a client.
Scope: applies regardless of whether client requested confidentiality or disclosure will harm the client.
Timing: can attach before a lawyer-client relationship is formed, and even if none is ever formed. To ensure it does not, there must be clear and specific language warning no confidentiality. Continues beyond death.
Broader than attorney-client privilege
Duty of Confidentiality – Total silence: Exceptions
Consent: If client consents after consultation, lawyer may reveal otherwise confidential information Client consents after consultation. Lawyer also has implied consent to reveal what’s necessary to render your legal services.
Crimes: Can reveal if…
(1) client is using or has used your services to commit the crime or
(2) you reas believe disclosure is nec to prevent reas certain death or substantial bodily harm.
* CA: In CA, if reasonable under the circumstances, you must make a good faith effort to persuade client not to commit the act and inform the client of your decision to reveal his confidences.
Compelled: Compelled by ct order, laws, ethical duties.
Defending yourself: Can reveal what is nec to establish a personal claim or defense against client in court
Duty of Loyalty/Conflict of Interest
Rule: Cannot have any other interest that materially limits loyal representation or is adverse to client. If such an interest arises, representation is allowed if meet certain criteria:
(1) Effective rep: You reas believe you can represent everyone effectively.
(2) Inform: You inform each affected client. If duty of confidentiality prevents this then consent not possible.
iii. Consent: Client consents in writing.
(3) Reas: If a reas atty would not advise a client to consent then consent is invalid.
Duty of Loyalty/Conflict of Interest: Imputed disqualification
Any group of lawyers that work together automatically share each other’s conflicts (but in CA, lawyer won’t be disciplined for imputed conflict)
Duty of Loyalty/Conflict of Interest: Imputed disqualification - Atty with conflict joins
conflicts will not be imputed if…
(1) timely and effectively screen,
(2) conflicted attorney receives no direct part of the fee,
(3) former client receives notice and periodic certifications of compliance with conditions
Duty of Loyalty/Conflict of Interest: Imputed disqualification - Atty with conflict leaves
group cannot represent client in matter adverse to leaving attorney’s client if…
(1) matters are substantially related and
(2) any remaining lawyer has confidential, material information.
Duty of Loyalty/Conflict of Interest: Remedies
Refuse to take the case.
Advise multiple clients to get separate counsel.
Withdraw.
Duty of Loyalty/Conflict of Interest: Prospective clients (2018 change)
A lawyer owes a duty of confidentiality as to confidential information received from prospective clients.
L shall not represent a client with material adverse interests to a prospective client in the same or substantially related matter if the lawyer received confidential information material to the matter from the prospective client – even if the lawyer was never actually hired.
“Prospective client” as someone who consults the lawyer for the purpose of hiring the lawyer or securing legal services/advice, specifically excluding those who communicate information: unilaterally without a reasonable expectation that the lawyer is willing to be retained, after the lawyer had stated an unwillingness or inability to consult, or without a good faith intention to seek legal advice or representation.
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts
Lawyer may represent w/ potential conflicts w/ the reas consent of all, but almost never proper if interests are in actual conflict.
Two clients w/ inconsistent positions: OK w/ consent of both clients, but if either would be disadvantaged then must withdraw.
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts - Opposing sides, same matter
Prohibited
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts- Opposing present client in simultaneous pending matter
A representation adverse to a current client in another matter permitted if rule is met, prohibited otherwise.
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts- Multiple clients in the same manner
Possible to represent insured/insurance co, employer/employee and company as co-Ds in civil litigation, both spouses in prenup, divorce, or will.
**Civil: But if conflict then apply main DOL rule.
***Crim: Dual rep might impede 6th Amendment guarantee of effective assistance of counsel.
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts- Actual conflicts (general)
Shall not represent a client whose interests are directly adverse to a current client.
Duty of Loyalty/Conflict of Interest: Client-Client Conflicts- Potential conflicts (general)
May represent clients whose interests are in PC provided R A D:
(1) Lawyer reasonably believes there would be
(2) No adverse effect on representation (he can represent all effectively)
(3) There is disclosure to the client of the potential conflict and the client consents in writing.
- **However, if an actual conflict develops during the course of representation the lawyer must:
- Disclose the conflict to the client
- Get further consent
- Withdraw if consent is not reasonable
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts + exception
Lawyer should not become interested in the subject matter of the litigation.
Exceptions: Atty lien on prop for fees and contingent fee basis OK.
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts - Business transactions or adverse interests
(1) terms are fair,
(2) fully disclosed in understandable writing,
(3) client has opp to consult outside atty,
(4) client provides written consent.
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts - Publication right contracts
Can’t buy rights to client’s story until after rep has ended.
***CA: discourages but allows if judge is satisfied that client clearly understands and consents.
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts - Loans and advances
Prohibits loans to clients, except for costs of litigation if client indigent and advance of expenses if client promises to pay back.
***CA: Prohibits promise of paying client’s debts to gain bus, but allows loans in all matters for any purpose after atty is hired if written IOU
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts - Limiting liability for malpractice
Can’t proscriptively limit malpractice liability
Duty of Loyalty/Conflict of Interest: Lawyer-Client Conflicts - Gifts
Can’t solicit substantial gift from client or draft legal instrument if client isn’t relative.
***CA: Only prohibits inducing the gift, not drafting the instrument
Duty of Loyalty/Conflict of Interest: Close relationships (“immediate fam”) w/ other lawyers in same matter
Close relationships (“immediate fam”) w/ other lawyers in same matter: create potential conflicts. No imputed disqualification for this.
***CA: Extends to any intimate relationship.
Duty of Loyalty/Conflict of Interest: Prohibition on Sexual Relations with Client (2018 Change)
Strict prohibition on sexual relations with a current client who is not a spouse or registered domestic partner, unless a consensual sexual relationship exists between them when the attorney client relationship commences.
Duty of Loyalty/Conflict of Interest: Trial counsel as nec W
Typically not allowed, unless lawyer’s appearance will not prejudice the client and testimony is uncontested, or regarding the nature of services rendered.
Also, allowed if lawyer’s distinctive value means withdrawal would impose substantial hardship.
***CA: Allows lawyer to testify if it is to anyone but the jury or if the client consents in writing.
Duty of Loyalty/Conflict of Interest: New clients in matters related to current or former clients
If confidential info from former client might be relevant to work on a new client’s matter then can’t take on the new client w/out reas permission from old one (confidentiality/loyalty probs).
*Do the reps overlap in function, scope, or info?
**Use of former client’s non-public confidential info against her is unreas.
***If lawyer leaves the firm, the firm might be able to represent the new client but imputed DQ applies to former firm if…
(1) the matters are substantially related or the same, and
(2) any remaining atty has confidential material info.
Duty of Loyalty/Conflict of Interest: Former gov atty now in private practice
If lawyer worked “personally and substantially” on a “matter” (specific dispute btwn specific people over specific issues), then lawyer can’t work on the same “matter” later in private practice.
Regs are not a “matter.”
Exceptions to imputed DQ for firms of former gov attys:
(1) screened off,
(2) don’t share any part of the fee in the matter, and
(3) gov ER is notified.
***CA: Hasn’t adopted this rule but does prohibit crim prosecutors from later participating on defense.
Duty of Loyalty/Conflict of Interest: Conflicts due to third party interference
Sole duty is to client, not to any third party.
Comp from third party is permitted only w/ informed client consent.
Duty of Loyalty/Conflict of Interest: Conflicts due to third party interference - Orgs and SEC
Organizational clients: Must act in best interests of entity, even if officer/EE/others act to the contrary. If CEO goes bad, tell him co is client, ask to reconsider or get outside counsel, if he doesn’t then go to board, if that doesn’t work go to outside people, then can always quit.
SEC: If securities atty then must report to CLO/CEO “evid” of any material violation of Sec laws or breach of fiduciary duty by client. If that doesn’t work, must go to board/ audit committee /outside directors.
Duty of financial integrity: Attorney fee agreements
Fee agmts should be reached early and clearly. Non-contingent fee agmts should include how fee is calculated, what services are covered, and the lawyer and client’s duties.
***CA: Agmts must be in writing, unless…
(1) fee under $1k,
(2) corporate client,
(3) for routine services for reg client, or
(4) emergency or impractical.
Duty of financial integrity: Attorney fee amounts
Amts: Fees must be reas – totality of circs.
***CA: Fees can’t be unconscionably high. Requires atty to agree to submit to arbitration re fees if client wants.
Duty of financial integrity: Contingency fees
Written fee agmts must be:
(1) signed,
(2) incl contingent %,
(3) what expenses to be deducted from recovery, and
(4) whether % is taken before or after expenses deducted.
- **CA: Also must incl:
(1) how work not covered by contingency fee will be paid,
(2) fees are negotiable, not some std % of recovery.
