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CA Bar Exam Essays > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Duty of Loyalty: Conflicts

A

A lawyer owes his clients the fiduciary duty of loyalty. A conflict of interest is one where the lawyer’s representation may be materially limited due to his personal interests or responsibilities to a third-party or client.

A lawyer may represent a client when there’s a conflict if the lawyer reasonably believes that he will be able to provide competent and diligent representation, and the affected client(s) give informed consent—in CA, written, in ABA confirmed in writing.

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2
Q

California: Written Disclosure of Personal Relationships

A

In California, a lawyer must provide written disclosure when the lawyer or someone at his firm has some intimate personal or professional relationship to a party or witness in a matter.

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3
Q

Duty of Loyalty: Former Clients

A

Unless a former client gives informed consent, a lawyer cannot represent another person in the same or substantially related matter that the lawyer’s firm had previously represented a client whose interests are materially adverse and about whom the lawyer acquired confidential information material to the matter.

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4
Q

Imputed Conflicts & Screening

A

Generally, a conflict of interest is imputed to the entire law firm and the whole firm is disqualified from the representation. But a law firm can prevent disqualification if they properly screen the conflicted lawyers and they don’t receive part of that fee.

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5
Q

Government Lawyers

A

If a former government lawyer worked personally and substantially on a matter, then unless the government agency consents in writing then the former government lawyer can’t work on the same matter at a private firm.

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6
Q

Business Transactions with a Client

A

A business transaction with a client is only permitted if : (1) terms are fair and reasonable to the client, (2) they’re fully disclosed in writing, (3) client is advised to consult with outside counsel and is given the opportunity to do so, (4) client consents in writing.

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7
Q

Pecuniary Interests Adverse to a Client

A

When a lawyer knowingly acquires an ownership, possessory, security, or pecuniary interest adverse to the client, the business transaction rule applies too:

(1) terms must be fair and reasonable, (2) fully disclosed in writing, (3) client is advised to consult with outside counsel and is given a reasonable opportunity to do so, (4) client consents in writing.

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8
Q

Proprietary Interest in a Case

A

ABA: with the exception of contingency fees or retaining liens authorized by law, no proprietary interests in the cause of action or subject matter of litigation is allowed. No literary or media rights either.

CA: no ban on this, but retaining liens are not allowed.

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9
Q

Preparing Instruments Where Lawyer is Substantial Beneficiary

A

Not allowed unless the lawyer/recipient of the gift is related to the client.

In California, an independent lawyer must have advised the client too.

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10
Q

Using Current Client’s Information

A

A lawyer cannot use a client’s confidential information to their disadvantage unless the client gives informed consent.

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11
Q

Financial Assistance to Client

A

A lawyer cannot provide financial assistance to a client. Exceptions are advancing litigation costs and a lawyer may give a personal loan to the client but only after the lawyer is retained and with written promise to repay by the client and in compliance with the business transaction and client conflicts rule.

In CA, moreover, if a client consents, then lawyers may pay a third-party from funds collected.

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12
Q

Payment of Legal Fees by a Third Party

A

This is allowed, but client must give informed consent (in CA, informed written consent—except pro bono legal services through non-profits don’t require this) and it doesn’t interfere with the lawyer’s independent of professional judgment or lawyer-client relationship, and the lawyer keeps the information related to the representation confidential.

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13
Q

Serving on the Board of a Client’s Organization

A

If a lawyer serves as a board member for a corporation/organization he represents, he must do so effectively and without jeopardizing his ethical duties to the company as his client.

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14
Q

Proper Scope of Lawyer-Client Relationship

A

A client controls the objectives of the representation, and decides substantive decisions (like whether to accept a plea or settlement).

A lawyer controls the means to accomplish those objectives—while, of course, consulting with the client as to means by which those objectives are pursued.

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15
Q

Advising or Assisting the Violation of Law

A

A lawyer cannot counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent.

In California, moreover, this rule extends to conduct that violates any law, rule, or ruling of a tribunal.

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16
Q

Duty of Competence

A

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

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

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17
Q

Duty of Communication

A

A lawyer must keep the client reasonably informed about any significant developments relating to the representation and promptly complying with requests for information.

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18
Q

Duty of Diligence

A

A lawyer must act with reasonable diligence and promptness in representing a client. Unless the representation is properly terminated, the lawyer must pursue the case or matter to the end.

In CA, moreover, a lawyer cannot intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing the client.

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19
Q

Duty of Loyalty

A

A lawyer owes his client a fiduciary duty of loyalty, which means that he must act in the client’s best interest, avoid self-dealing, and avoid conflicts.

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20
Q

Duty of Confidentiality

A

A lawyer has a duty to maintain the confidentiality of all information relating to hte representation of a client—this is broader than the attorney-client privilege, because it extends to all information conveyed between the lawye and client, regarldess of whether the client requested that hte information be kept confidential or whether the use of the information will damage the client.

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21
Q

ABA: Disclosing Confidential Information

A

Under ABA, lawyer may disclose if client consents, is ordered to do so by law, it’s needed in a dispute with a client (malpractice or fees), to prevent the client from committing a crime or fraud in which the lawyer’s services were used that will result in substantial financial loss, or to prevent death or substantial bodily harm.

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22
Q

CA: Disclosing Confidential Information Otherwise Protected by the Duty of Confidentiality

A

In CA, disclosure is ONLY permitted if the lawyer reasonably believes that the disclosure is necessary to prevent a crime that will likely result in death or substantial bodily injury to a person.

Moreover, the lawyer must ALSO satisfy two requirements first: (1) good faith attempt to dissuade client from taking that action, and (2) inform client that the lawyer has the option to disclose the confidential information.

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23
Q

Inadvertent Disclosure

A

ABA: promptly notify the sender

CA: refrain from examining the materials any more than is essential to ascertain whether the materials are privileged, immediately notify the sender, and seek resolution of the situation by agreement or through court.

24
Q

Aggregate Settlement & Please

A

Except for class actions, a lawyer must obtain informed written consent from all clients in an aggregate settlement.

25
Q

Limiting Liability to a Client

A

CA: a lawyer cannot contract to prospectively limit the lawyer’s liability to the client for malpractice.

ABA: a contract prospectively limiting the lawyer’s liability for malpractice is permitted if the client is independently represented in making the agreement.

26
Q

Settling Malpractice Claim

A

A lawyer may not settle a claim, or potential claim, for malpractice liability unless the client is first advised in writing that they may seek the advice of an independent lawyer and is given a reasonable opportunity to do so.

27
Q

Sexual Relations with a Client

A

A lawyer cannot have sexual relations with a current client unless a consensual sexual relationship existed before representation. For organizational clients, this means the person in the organization who supervises, directs, or regularly consults with that lawyer concerning the organization’s legal matters.

28
Q

Organization as Client

A

A lawyer represents the organization and its best interests, not its leaders or directors. A lawyer representing the organization must therefore explain the identity of the client when dealing with constituents that have adverse interests to the organization.

29
Q

Representing Both Organization and Its Employees

A

A lawyer may represent both an organization and its leaders or employees, but must obtain consent to the dual representation by the appropriate official in the organization or its shareholders.

30
Q

Misconduct in Organizations: “Reporting Up”

A

A lawyer must report up to higher authorities in the organization any misconduct that is likely to result in substantial injury to the organization.

31
Q

Misconduct in Organizations: “Reporting Out”

A

ABA: if the highest authority within the organization refuses to change course in a timely manner, the lawyer may report outside of the organization if the action is unlawful and the lawyer reasonably believes the violation will result in substantial injury to the organization. (This doesn’t apply, however, when the lawyer was hired to investigate or defend against the alleged violation of the law.)

In California, by contrast, this reporting is NOT permitted because it would violate the duty of confidentiality.

32
Q

Mandatory Withdrawal: Physical or Mental Impairment

A

A lawyer must withdraw from representing a client if a physical or mental condition materially impairs the representation (ABA), or makes it unreasonably difficult to carry out the representation (CA).

33
Q

Mandatory Withdrawal: Violation of an Ethics Rule

A

A lawyer must withdraw if the representation will result in a violation of an ethics rule or other law.

34
Q

CA: Mandatory Withdrawal when Client Presses Frivolous and Harassing Claims

A

In California, a lawyer must withdraw if he knows or should know that the client is bringing an action without probable cause in order to harass or maliciously injure someone.

35
Q

Proper Withdrawal

A

Provide timely notice to the client, promptly return any property and—if the litigation has already begun—seek court’s approval. A lawyer cannot hold the client’s materials hostage pending the payment of his fees.

36
Q

Permissive Withdrawal: ABA and CA

A

A client persists on a criminal or fraudulent course of action, client has already used the lawyer’s services to commit a crime or fraud (note the difference in tense—if the services were going to be used prospectively to commit a crime or fraud, then withdrawal would be mandatory), client fails to substantially fulfill his end of the retainer agreement after a warning, or representation has been rendered unreasonably difficult by the client.

37
Q

Permissive Withdrawal: ABA

A

ABA also permits withdrawal if the representation will result in an unreasonable financial burden on the lawyer, client insists upon taking action the lawyer deems repugnant or has a fundamental disagreement with, or if withdrawal will not materially damage the client’s interests.

38
Q

Permissive Withdrawal: CA

A

In California, a lawyer may also withdraw if:

(1) Client insists on pursuing a claim that can’t be be supported by a good faith argument
(2) Inability to work with co-counsel where withdrawal would be in the best interests of the client

39
Q

Duty of Candor to the Tribunal

A

A lawyer cannot knowingly lie to the court, fail to correct a lie previously made to the tribunal, or fail to disclose controlling legal authority known to be adverse (unless already disclosed by opposing counsel).

BUT RECALL: in CA, unless a client consents, disclosure of confidential information is PROHIBITED.

40
Q

Criminal Defendants: When You “Reasonably Believe” He’s About to Lie

A

Although a lawyer MAY generally refuse to offer evidence that the lawyer reasonably believes is false, a lawyer CANNOT refuse to offer a criminal defendant’s testimony even if he reasonably believes it’s false.

41
Q

Criminal Defendants: When You KNOW He’s About to Lie

A

If a lawyer KNOWS a criminal defendant’s testimony will be false, should (1) try to persuade the client that the evidence should not be offered, (2) attempt to withdraw from the case if the persuasion is ineffective.

ABA: you must tell the court
CA: you MAY NOT tell the court—duty of confidentiality in CA trumps all. And you MUST ALLOW the defendant to testify in a narrative fashion. Just can’t rely on it in closing argument.

42
Q

Witnesses Who Lie

A

A lawyer CANNOT call a witness that he KNOWS will commit perjury.

A lawyer MAY call a witness that MAY be lying, but the lawyer doesn’t KNOW.

If a lawyer later learns that a witness committed perjury, the lawyer must take reasonable remedial measures.

43
Q

Asking People to Refrain from Talking to Others

A

A lawyer generally can’t request that another person refrain from voluntarily giving information to another party, unless the other party is a relative, employee, or other agent of the client and lawyer reasonably believes that silent will not adversely affect the person’s interests. In other words, don’t hurt someone else’s interests.

44
Q

Discovery: Reasonably Diligent Effort to Comply and No Frivolous Discovery Requests

A

Lawyers must make reasonably diligent efforts to comply with discovery requests and refrain from making frivolous discovery requests.

45
Q

Paying Witnesses

A

A lawyer cannot offer to pay witnesses hinging on the content of their testimony. A lawyer can, however, pay a witness for: (1) reasonable expenses incurred to testify, (2) reasonable compensation for loss of time, and (3) reasonable fee to an expert witness.

46
Q

Lawyers as Witnesses

A

A lawyer cannot be a witness in a case in which they are a lawyer unless the testimony relates to an uncontested issue, or to the nature and value of legal services rendered in the case.

In ABA: if lawyer’s disqualification would create a substantial hardship on a client.
In CA: if lawyer has informed written consent of the client.

47
Q

Communication with a Represented Person

A

A lawyer may not speak to a person represented by counsel in a matter without first getting permission from their lawyer—the person agreeing to speak is not sufficient—unless it’s due to a court order.

In California, speaking to a public official or multimember body is permitted without getting the lawyer’s permission.

48
Q

Trial Publicity

A

In general, a lawyer may not make extrajudicial statements to the public that will be disseminated and will have a substantial likelihood of materially prejudicing the case (jurors or potential jurors).

Exceptions: (1) A remedial measure for trial publicity that has adversely affected the client that the lawyer did not initiate. (2) Warning of danger when a substantial likelihood of harm exits.

49
Q

Special Rules for Prosecutors

A
  1. Disclose any exculpatory or mitigating evidence.
  2. Take reasonable efforts to assure that the accused has been advised of the right to counsel.
  3. Not seek to obtain from an unrepresented accused a waiver of important pretrial rights.
  4. Seek to remedy a conviction when you know of clear and convincing evidence establishing that the defendant did not commit the crime.
  5. Promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the crime.
50
Q

CA Special Rule: No Threatening of Criminal, Administrative or Disciplinary Charges

A

In California, a lawyer cannot threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. This doesn’t apply to a threat to bring a civil action, general statements about pursuing all available remedies, or threatening to initiate a contempt proceeding when opposing counsel fails to comply with a court order.

51
Q

Amount of Lawyer’s Fees

A

ABA: the fee must be reasonable
CA: the fee cannot be unconscionable

52
Q

Facts to Determine Whether the Fee is Ethical

A

Time, skill, experience, degree of speciality, and difficult required for the task

Foregoing other legal employment

Whether the fee is fixed/contingent

Relationship with the client

Services performed/results obtained

53
Q

ABA: No Written Fee Agreement Required

A

ABA: general fee agreements aren’t required to be in writing EXCEPT for contingency fee agreements which must always be in writing.

54
Q

CA: Written Fee Agreement IS Required

A

CA: all agreements must be in writing, unless it’s:

(1) Under $1,000
(2) Routine work for a regular client
(3) Client waives in writing
(4) Emergency or other impracticability

In CA, fee agreements must also include: (1) how compensation is calculated, (2) the nature of legal services provided, and (3) responsibilities of the lawyer and client. If it’s missing these, then the fee agreement is voidable.

55
Q

Contingency Fee Agreements

A

Contingency fee arrangements must all be in writing and signed by the client, include the percentage of recovery the lawyer will take, the expenses that will be deducted from recovery, and whether the lawyer’s percentage is taken out before or after expenses.

In CA, additional requirements: MUST state that the fee is negotiable, and how work or expenses not covered by the contingency fee will be charged.

56
Q

No Contingency Fee Agreements for Criminal Defendants and Domestic Disputes

A

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

CA Bar Exam Essays (2 decks)

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