Professional Responsibility ABA/CA

Question 1

Attorney-Client Relationship
Formation

Answer 1

An attorney client relationship begins when the client first seeks legal professional advice, even if a formal relationship is never formed. Upon such a relationship being formed, the attorney owes each client certain duties and responsibilities as laid out by the ABA and CA.

Question 2

Prospective Client

atty-client relationship does not form

Answer 2

The attorney must keep confidential any info leanred from the prospective client, as long as it is not already known publicly.

Question 3

Informed Consent

Answer 3

informed consent is an agreement to allow something to happen with full knowledge of the risks and alternatives involved.

Question 4

Duty of Confidentiality

Answer 4

Attorney owes a duty of confidentiality to their clients acquired before, after, or during representation. Under CA, attorney must maintain the confidence and at every peril to hiselve preserve the client’s secrets. The duty of confidentiality lasts forever under ABA; and ends when the client’s estate settles under CA.

Encompassed in both ABA and CA, the attorney must take reasonable steps to avoid inadvertent disclosure of confidential communication.

Question 5

Duty of Confidentiality
ABA Exceptions

Answer 5

Under ABA, the atty must not disclose info acquired through representation of the client unless: 1) client gives informed consent, or 2) it is impliedly authorized in the course of representation, or 3) the atty reasonably believes it is necessary to prevent death or substantial bodily harm, or 4) to prevent or mitigate the client’s actions that are reasonably certain to cause substantial financial injury where the atty services were used, 5) to inquire about compliance with ethics rules when involving a dispute with a client or court order.

Question 6

Duty of Confidentiality
CA Exceptions

Answer 6

The attorney can disclose as much info as needed to prevent death or substantial harm- atty must make good faith effort to talk client out of it and inform the client the atty will have to withdraw from representation.

Question 7

Inadvertent Disclosure

Answer 7

When an attorney inadvertently receives confidential information or work product from an opposing party they are required to inform the sending party.

Under the ABA, they must send the product back, the rule does not require the attorney forgo looking at the document.

Under CA, the attorney must refrain from reading the document but are not required to return the document.

Question 8

Attorney Client Privilege

Answer 8

This privilege prohibits a court or government tribunal from compelling the revelation of confidential communications between an attorney and a client if the subject of the communication concerns legal advice. When the client is a corporation, the privilege covers communications between the lawyer and a high-ranking corporate official ( managers, officers etc)

Arises with : Communications with persons represented by counsel

Do atty-client waiver; and maybe duty of confidentiality; work product privilege

Question 9

Waiver of Attorney-Client Privilege

Answer 9

The privilege exists for the benefit of the client, not the lawyer. The client is the privilege holder and may waive the privilege. The lawyer must assert the privilege on the client’s behalf.

discuss if there was no waiver.

Question 10

Attorney Work Product Doctrine

Answer 10

Protects evidence of attorney’s thought process and preparation for trial, or anticipation of litigation may be protected from disclosure to opponents.

Work product may be created at attorney’s request or by an agent of attorney.

Work product protection may be overcome when: the info is only available through discovery; it is indespensible and necessary for impeaching or substantiating a claim; it would create undue hardship on the opponent. (i.e. a witness has died or moved out of Jx, if atty met with them prior, atty may have to share indespensible evidence).

Absolute privilege is the attorney’s belief, opinion, and strategy and is protected in CA even after a client dies.

Question 11

Duty of Competence

Answer 11

Under ABA, attorney shall have legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation of the client.

Under CA, attorny is subject to discipline if attorney intentionally, recklessly, or repeatedly fails to perform legal services with competence.

Competence includes the duty to supervise the work of subordinate lawyers and nonlawyer employees - they must conduct themselves in a manner compatible with the rules of professional responsibility. An attorney is responsible for overseeing the work and is subject to discipline if the attorney ratifies wrongdoing.

Question 12

Ways to become Competent

Duty of competence

Answer 12

If attorney is not competent in the subject matter, the attorney may educate themselves in the area so long as they do not create an undue expense or delay to a client or to associate with another attorney who is licensed to practice.

Question 13

Duty of Diligence

Answer 13

Attorney must act with reasonable diligence and promptness in representing a client. Reasonable diligence is commitment and dedication to the client’s interests and does not act with neglect, disregard, or unduly delay. Under CA, attorney may not intentionally, recklessly, repeatedly or with gross neglgience fail to act with reasonable diligence in representing client.

Moreover, under both rules, diligence does not require incivility, attorney is not bound to press every cnceivable advantage.

Question 14

Duty to Communicate

Answer 14

Attorney shall explan a matter to the extent reasonably necessary to permit the client to make informed decisions regardingthe representation and shall inform the client of the decisions that require the client’s informed consent, convey settlement offers, and answer client communications. In exigent circumstances it may be reasonable for an attorney to make decisions without consulting with the client. Withholding information is not okay to serve the attorney’s own interests or convienence. Withholding information may be okay when attorney is directed by court order.

In CA, delaying communication may be appropriate where client may react in a way that would cause imminent harm.

Question 15

Client Expects Assistance Not Permitted

Duty to Communicate

Answer 15

Attorney shall consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows the client expects assistance not permitted by the rules of prof. resp.

Question 16

Professional Liability
Malpractice Insurance
CA Requirement

Answer 16

Under CA, attorney has to disclose in writing to the client at the time of engagement that attorney does not have professional liability insurance.

Question 17

Scope of Representation

Answer 17

The client directs the objectives and goals of representation but the attorney is permitted to direct the means or strategies to achieve the objectives/goals. The client has specific authority to decide whether to settle; how to plead; whether to waive a jury trial; and whether to testify.

The attorney may take actions impliedly authorized to carry out the goals of representation. So long as the attorney is maintaining communication with the client, the attorneymay use implied authorization, unless there is a material change to the client’s circumstances. Attorney should immediately consult with client to see if client revokes authority.

As the advisor, the atty should use their professional judgment to advise the client how their desire to delay the case conflicts with the attorney’s ethical obligations without real benefit to the client.

Question 18

Attorney client Relationship w/ Clients with diminished Capacity

(Infancy, mental impairment or other)

Answer 18

Clients with diminished mental capacity may be able to make some kinds of decisions on their own behalf. The attorney has a duty to maintain a normal attorney-client relationship with clients as far as possible. If it appears client cannot adequately protect client’s own interests, the attorney needs to take necessary actions, such as seeking the appointment of a guardian for the client.

Question 19

Client Inquiry re Criminal or Prohibited Acts

Answer 19

No counseling or assisiting in conduct the attorney knows or should know if fraudulent. Attorny can tell the client the legal consequences of the actions, or explain the application of the law and scope.

Question 20

Duty of Loyalty

Answer 20

Attorney must exercise professional judgement solely for the benefit of the client, and must avoid conflicts of interest.

Question 21

Actual Conflict

Answer 21

A conflict exists where there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or by the lawyer’s duties to another; or 2) representation of one client is directly adverse to another client.

If the attorney represents the second client in an unrelated matter only, the conflict may be waivable.

Question 22

Potential Conflict

Answer 22

A potential conflict exists when the attorney believes a COI may exists but the issue does not yet materially limit representation. Under ABA, there is no disclosure or consent requirement for potential conflicts.

Under CA, attorney must obtain informed written consent (IWC) meaning the disclosure and the consent must be in writing. If the conflict ripens into an actual conflict then consent must be obtained again.

Question 23

Representation despite Conflict

duty of loyalty

Answer 23

Attorney may represent the client despite a conflict when (1) attorney reasonably believes they will be able to provide competent and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against another client in the same matter; and (4) each client gives IWC.

Question 24

CA: No Risk Limitation

Duty of Loyalty - Potential Conflict

Atty personal relation with party or witness

Answer 24

In CA, if attorney has a personal relationship with a party or witness in the client’s matter, the atty must provide written disclosure to the client even where there is no significant risk that the relationship would materially limit the representation.

Question 25

New Clients in Matters Related to Former Clients

Duty of Loyalty

Answer 25

When former client has imparted confidential information, the attorney must not oppose former client in any matter in which the confidential info would be relevant unless the former client gives IWC.

Question 26

Former Government Attorney in Private Practice

Duty of Loyalty

Answer 26

The ABA bars a former government attorney who worked personally and substantially on a matter from working on that same matter later in private practice, unless they obtain IWC from the government agency.

Under ABA, other member’s of the former gov. attorney’s firm may work on the case when: 1) the conflicted atty is screened form the matter, 2) the conflict atty does not share in the fees from the matter, 3) the former gov employer is imformed of the conflict.

In CA, prosecutors who worked on a case may not later work for defense on that case. Although CA is silent on civil cases, case law follows ABA rules on screening.

Question 27

Economic Adversaries

Duty of Loyalty

Answer 27

If two clients are head - to -head adversaries in an economic sense, but their interests are not adverse in a legal sense then there is no conflict. Attorney can disclose the situation to their respective clients without revealing confidential info, they may do so for the sake of client good will, but wouldn’t be subject to discipline for failing to do so.

Question 28

Sexual Relationship with Client

Duty of Loyalty

Answer 28

Both authorities prohibit sex between an attorny and client absent a preexisting sexual relationship. If someone other than the client accuses the attorney for violating the rule, the state bar cannot file charges until it has tried to obtain the client’s statement and considered whethere further investigation would unduly burden the client.

Question 29

Business Transaction
Or Interest Adverse to Client

Duty of loyalty

Answer 29

Attorney may enter a business transaction with client or obtain an interest adverse to the client when the (1) terms are fair to the client; (2) the terms and conflict are disclosed in understandable writing; (3) the client is advised to discuss the issue with outside counsel, (CA requires the advisement be in writing), and (4) the client gives IWC to the essential terms.

The rule does not apply to an ordinary fee agreement between the attorney and client or standard commercial transactions in which the attorney buys goods or services that the client routinely markets to the public.

Question 30

Gift From Client

Duty of loyalty

Answer 30

Attorney may not solicit a gift from a client or draft a legal instrument that directs a gift to the attorney (e.g. will or trust) for a client who is not their close relative.

CA allows an attorney to accept a gift from a client if the client has been advised by an independent attorney who has provided a certificate of independent review that no fraud or undue influence exists.

Question 31

Estate-Executor

Duty of loyalty

Answer 31

The conflicts rule for gifts from clients doesn’t prohibit the attorney from seeking to have themselves or their collegue names as the executor of an estate or counsel to the executor or to some other fee paying position.

There may be a conflict, though, if the attorney’s interest in obtaining the appointment will materially limit the attorney’s judgment in advising hte client concerning the choice of the executor or other fiduciary. In that situation, the attorney would need to get the client’s IWC and explain the financial interest as well as the availability of alternative candidates for the job.

Question 32

Limiting Malpractice Liability

Duty of Loyalty

Answer 32

Attorney may not limit their client’s right to report the attorney for professional misconduct or to cooperate in an investigation. Additionally, attorney may not limit their malpratice liability when entering an attorney-client relationship unless the client is independently represented with repect to that agreement.

Question 33

Settling Malpractice Case

Duty of Loyalty

Answer 33

If a client sues an attorney for malpractice, the attorney may not settle the case until the client consults outside independent counsel. CA bars limiting malpractice but allows a client to settle a claim or potential claim with an attorney if the client is actually represented by an independent attorney concenring the settlement or is advised in writing to seek advice from an independent attorney and given reasonable time to do so.

Question 34

Financial Assistance
Advances to Clients
Loans

Duty of Loyalty

Answer 34

The ABA bars all financial assistance to clients accept in a contingency case, the attorney may advance litigation expenses on behalf of indigent clients.

Under CA, attorney may advance money to client for any prupose if client promises in writing to repay the loan.

Question 35

Compensation from 3p
not from client

Duty of loyalty

Answer 35

A third party may pay a client’s fees if the attorney obtains client’s IWC, and the attorney-client relationship is not interfered with.

Question 36

Trial Counsel Serving as Witness

Duty of Loyalty

Answer 36

Attorney who expects to be called as a witness in a matter is expected to withdraw from case unless:
(1) attorney’s testimony relates to an uncontested issue (i.e. location of property if not at issue).
(2) testimony about legal services (i.e. quality of attys legal services at issue - during trial client is frustrated and raises concerns to tribunal. allowing atty to take stand right away helps judge make informed decision);
(3) when disqualification of the atty would cause substantial hardship on client (balancing interests of the client with interests of tribunal and opposing counsel; is the tribunal likley to be misled with atty acting as witness and advocate); or
(4) under CA rules, atty obtains written consent from client.

Question 37

Imputed Disqualifications
(COI to whole firm)

Duty of Loyalty

Answer 37

If an attorney has a COI it is generally imputed to everyone in the firm, even lawyers in different offices unless, its due to the attorney’s personal interest, and doesnt present a significant risk of materially limiting the representation by other lawyers.

The attorney must be screened from participation in the subject matter, given no fee, and former client notified in writing ( about screening procedures employed and an agreement by the firm to respond promptly to any written inquiries or objections by the former client about the screening procedures) or the attorney is leaving( or left) the firm.

Imputed disqualifications cans be waived if both parties give IWC, lawyers believe they can competently and diligently represent the client.

Question 38

Corporation as a client

Answer 38

The attorney must act in the best interest of the entity, not the appointed representatives, usually officers. When the attorney is dealing with an organization’s constituents and reasonably should know the organization’s itnerest are adverse to the constitutent, the attorney must explain the adverse itnerest and make clear that the atty is representing the corporation and cannot mislead the constitutent into believeing the attorney represents them personally.

Question 39

Duty to Report

Organization as Client

Answer 39

When the attorney learns of conduct made by an individual in the corporation which could harm the organization by financial or reputational harm then there is a duty to report up.

Under ABA, attorney must report misconduct up the chain of authority of the organization. If the highest authority fails to act, the attorney may report information to appropriate persons outside the organization.

Under CA, the attorney may report up the chain but the attorney may not report out, rather, the attorney must withdraw if there is a failure to act. However, should there be a federal law requiring atty to report out, supremacy law holds the atty must report accordingly.

Question 40

Fee Agreements

Answer 40

Atty shall not charge or collect unreasonable fees (In CA, unconscionable or illegal). Under ABA, written fee agreements are adviseable, except for regularly represented clients with the same basis or rate. Under CA, they are mandatory unless: (1) the total expense of the fee is under $1000; (2) with a corporate client; (3) for routine services for a regular client; (4) it’s an emergency or impractical; or (5) where the client states in writing after full disclosure that a writing is not required.

Ca writings must include: hourly rates, statutory fees, other charages, general nature of serves provided, attorney and client contractual responsibilities.

Question 41

Reasonable Fee factors

Answer 41

Under ABA, fees must be reasonable based on factors such as: time, labor, novelty, and skill required, likelihood other clients won’t come; customary fee in the area; amount involved and the results; time pressure by client or cisrcumstances; nature and length of the relationship with client; attorney’s reputation and experience.

CA prohibits unconscionable fees, fee factors include: amount in proportion to value of services; relative sophistication of the attorney and client; client’s informed consent of the fee. A court will not enforce a contract for unreasonably high attorney’s fee or an unreasonably high amount for expenses, and the attorney is subject to discipline for trying to exact such an amount for expenses.

Question 42

Contingency Fees

Answer 42

Contingency fee agreements state the attorney’s fee will be paid out of any recovery the client receives. Under both authorities, it must be in writing that is signed by the client, and include the percentage the lawyer will deduct, expenses, and if the expenses are deducted prior or after the lawyer fee is paid. At the conclusion of the contingent fee matter, atty must provide in writing how the fee was calculated.

In ca, the writing must inlcude how expenses not covered in the agreement will be charged, adn that fees are not set by law and negotiable.

Question 43

Type of cases Contingency Fees not allowed on

Answer 43

Contingent fees are not allowed for criminal cases or for domestic relations cases where payment is contingent upon securing divorce or the amount of alimony is uspport or the settlement of property.

Question 44

Fee Splitting

Answer 44

Under ABA and CA, fee splitting is prohibited with nonlawyers. Attorney may split fees with attorneys that are within the law firm.

If atty is not within the law firm, the ABA requires that the fees be reasonable, there is IWC, and the fee is divided porportionally to the work done OR each attorney shares joint responsibility for the representation in whole (financial and ethical responsibility).

In CA, the fees cannot be increased as a result of the division or unconscionable, the attorneys enter into a written agreement regarding teh split, disclose the fee splitting to the client, and obtain written consent.

Question 45

Referral Fees

Answer 45

Under ABA, attorneys may not give anything of value for recommending their services, but may engage in non exclusive mutual referral of clients or participate in an approved attorney referral program.

The attorney may give another attorney a token gift for a referral however, it is prohibited if offered in exchange for a promise or agreement or understanding that a gift would be forthcoming.

CA allows a referral fee to an outside lawyer who refers a case if the client consents and gives IWC and no extra amount is charged to the client.

Question 46

True Retainer v. Advance Payment

Answer 46

A true retainer is money that is paid solely to ensure the availability of the attorney, and the attorney who is fired or withdraws generally need not refund the retainer fee.

In contract, when atty requires advance payment for services yet to be rendered, she must refund any unearned part of the advance if she is fired or withdraws.

If the flat fee is greater than 1k, agreement and notice to deposit are written and signed by client. In CA, the retainer must be deposited into the client IOLTA account maintained in CA.

Question 47

Fee Dispute

Answer 47

CA requires attorney to submit to arbitration for fee disputes; the ABA encourages arbitration.

Question 48

Attorney Withholding of Legal Work
for Payment

Answer 48

Attorney has a duty not to make a fee agreement that could curtail service in the middle of the relationship and place the client at a bargaining disadvantage. However, attorney is allowed to withdraw from representing client where the client refuses to pay the atty fees, wwhere to do so would not materially harm the client. Attorney would withdraws must take reasonable steps to protect the client’s interest and must give client reasonable notice of the withdrawal.

Question 49

Duty to Safekeep Client’s Property

No Commingling

Answer 49

[CA, notify receipt of funds within 14 days]

Under ABA and CA, commingling with an attorney’s personal funds is not permitted; client funds must be in a separate trust account. Under CA, the funds must be in an IOLTA account registered with the state bar. A disputed portion shall not be withdrawn until the dispute has been resolved.

The attorney should notify promptly within 14 days, a client of receipt of funds, that the attorney knows or reasoanbly should know the client has an interest.

Question 49

Duty to Withdraw

Answer 49

Attorney has a duty to withdraw in certain situations. Withdrawal may be mandatory or permissive.

Mandatory means the attorney must ask the court for permission to withdraw if the matter is already in litigation, whereas permissive withdrawal holds that the attorney may withdraw with the court’s permission if the matter is in litigation.

Question 50

Grounds for Mandatory Withdrawal

Answer 50

Grounds for mandatory withdrawal are:
(1) continuing representation will result in violating laws or ethical duties; (2) attorney’s mental or physical condition is materially impaired; (3) client fires the attorney.

CA also requires withdrawal when it is unreasonably difficult to carry out representation effectively; or the attorney knows or reasonably should not client’s actions is without probable cause to harass or maliciously injure (frivilous).

ABA also requires withdrawal if there was past fraud involving attorney services. Where the attorney learns the client used atty services to financially injure a third party, atty must withdraw from representing the client in any future work.

Under ABA, the attorney may reveal enough of the client’s information to prevent injury or rectify or mitigate the harm done. The may becomes a must if revealing the client’s confidential info is the only way the attorney can avoid assiting the client in crime or fraud.

Question 51

Grounds for Permissive Withdrawal

Answer 51

grounds for permissive withdrawal are held as good cause (no material adverse affect) which include: (1) client consent; (2) imprudent or morally repugnant to the attorney’s beliefs; (3) attorney reasonably belives or knows client is using attorney servces for criminal or fraudulent acts; (4) client is unreasonably difficult or unreasonable financial burden; (5) client fails to fulfill obligations and atty had warned client of withdrawal.

Question 52

Withdraw Procedure

Answer 52

Upon withdrawal, attorney must take steps to reasonably protect the client’s itnerests (timely notice and reasonable opportunity to find another attorney), surrender files and proeprty, and refund unearned fees.

Under CA, attorney is prohibited from keeping the materials in roder to persuade the client to pay the attorney any fees owed.

Question 53

Communications with Represented Entities

Duties to others

Answer 53

CANNOT COMMUNICATE WITH REPRESENTED PARTIES

Attorney may not communicate about the subject of the representation with a person whom they know to be represented by another attorney in the same case, unless they have the other attorney’s consent or are authorized by law or court order. Attorney may not make a misrepresentation of fact. The attorney must obtain consent for itnerviews of an officer, director, or managing agent.

If the managing employee no longer is employed at the time of litigation, then communication is okay. However, in CA, attorney may not inquire about privileged communications the former employee made with/ on behlalf of the former employer (such as manager communications with attorney).

If atty spoke with employee without consent, do atty/client privielge and waiver of privilege approach to see if CA atty inquired about privileged communications.

Question 54

Advertising

Answer 54

Attorney may advertise their services through any form of written, recorded, or electronic communication, that is not false or misleading. However, atty is prohibited from referral fees with non lawyers. Mail must be labeled as “advertising materials.”

Any advertisement must include the name and address of at least one attorney or law firm responsible for its content.

Guarantees, warranties, predictions or results are presumed improper in CA.

Testimonials or endorsements can be inlcuded with an express disclaimer that they are not guarantees, warrantees or predictions. Must keep record of advertisements for 2 years.

Question 55

Solicitation of Clients

Answer 55

Attorney must not seek fee paying work by intiaiting contact with prospective clients who are not an attorney and with whom the attorney has no pre-existing professional, personal, or family relationship. However, the attorney may ask another person to engage in face to face solicitiation of potential clients when the attorney will be providing unpaid, pro bono representation.

In CA, solicitation extends to real time electronic contact. CA presumed communications are improer when made a tthe scene of the indident, en route to a medical facility, or to a potential client the attorney knows is not in a physical or mental state to exercise reasonable judgement.

Question 56

Duty of Fairness

Answer 56

Attorney has a duty to behave honestly, both in and out of legal practice. Attorney must promote public confidence in the integrity and efficiency of the legal system and profession. In CA, attorney may not bring or threaten disciplinary, administrative or criminal proceedings against someone as leverage in a civil suit.

Question 57

Prevent Perjury

Duty of Fairness

Answer 57

Attorney has a duty to prevent perjury. In a civil case, if the attorney reasonably believes that the client will lie on the stand, the attorney may refuse to call them as a witness.

In criminal prosecution, a D has a 5th and 6th A right to testify on their own behalf. Under ABA, where atty KNOWS that client has or is about to testify falsely, atty must try to persuade client not to and if that fails, may seek to withdraw. If withdrawal does not remedy the situation, atty should disclose the matter to the court.

CA requires the attorney to try to persuade the client not to testify, and it that fails, the attorney MAY seek the court’s permission to withdraw. The attorney may only allow the perjurious client to testify in a narrative fashion.

Question 58

Witness Expenses

Duties to Others

Answer 58

Attorney may pay basic expenses incidental to witness testimony and reasonable fees only if payment is not contingent on the content of the testimony.

Question 59

Communication with Adversaries

Answer 59

Atty may not lie, mislead, or use means with no prupose other than to delay, burden or embarass.

Question 60

Communication with Press

Answer 60

Atty has duty to not interfere with D’s right tto a fair trial. Atty and their agents must avoid out of court statemtns that the atty reasonably should know has a substantial likelihood of materially prejudicing the case unless
(1) the matter is in the public record or routine booking information, (2) it is intended to warn the public, (3) informing the public of an ongoign investigation, or (4) the staetments are required to protect a client from substantial undue prejudice from recent publicity that is not self-initiated.

Question 61

Duty to Preserve Dignity and Decorum of the Court

Answer 61

Attorney may not attempt to influence anybody improperly. Attorney may not talk to any prospective or impaneled juror either before or during trial, engage in abusive conduct, belligerance, or theatrics.

Question 62

Duty to Expedite

Answer 62

Atty has affirmative duty to expedite a case. In CA, atty must not delay to harass an adversary or for their own personal gain or convenience.

Question 63

Duty to Tribunal

Answer 63

In general, atty may not engage in dishonest behavior or knowingly misrepresent the facts or applicable law.

Question 64

Candor to the Tribunal

Answer 64

Under ABA and CA, atty shall now knowingly make a false statement of fact or law, including offering false evidence and must correct any material misrepresentation or misstatements.

There is an affirmative obligation to disclose controlling law even if adverse to the client’s position.

Question 65

Duty to Not Conceal or Suppress Evidence

Answer 65

WIthout a proper evidentiary or privilege basis to object to the disclosure, an attorney is obligated to share requested relevant eveidence to the other side. Atty must not unlawfully alter, destroy, or conceal evidence. Atty has an obligation to take reaosnable remedial measures if there is criminal or fraudulent conduct to a proceeding. it is a crime to destroy or conceal evidence.

Question 66

Frivolous Meritorious Claims

Answer 66

Atty may not make frivilous assertions in any proceeding. A position is not frvilous if the atty can make a good faith argument hat the facts or law are as claimed or that the present law should be changed.

Atty is subject to discipline for brigning an action, conducting a defense, asserting a postion, or taking other steps if the client’s motive was to harass or maliciously injure any person.

Question 67

Special Duties of Prosecutors
Production of Evidence

Answer 67

Prosecutors have a duty to timely disclose evidence favorable to the D, which requires disclsoure irrespective of admissibility or impact on the outcome.

Question 68

Special Duties of Prosecutors
Probable Cause

Answer 68

Prosecutors shall seek justice, not just win cases. Prosecutors must have probable cause to bring a charge.

Question 69

Special Duties of Prosecutors
Statements to the public

Answer 69

Prosecutors shall refrain from amking extrajudicial comments that have a substantial likelihood of heightening condemnation of the accused and exercise reasonable case to prevent investigators or law enforcement personnel from making such statements.

Question 70

Unauthorized Practice of Law

Answer 70

Practice of law is activies involving legal knowledge, skill, and advice, that calls for professional judgment of an attorney. Atty cannot engage or aid in the unauthorized practice of law. A non-atty may do non-atty work like research, drafting, clerical, and billing.

Under CA, atty may hire and properly supervise a disbarred, suspended, resigned, or involuntarily inactive member to do non-attonrey work. the hiring attorney must serve written notice to the state bar and client.

Question 71

Violations of Professional Rules - CA

Answer 71

An attorney shall not knowingly assist in, solicit, or induce any violation of the rules of professional responsibility

Question 72

Reporting Misconduct

Answer 72

Under ABA and CA, if attorney KNOWS of a violation of rules that presents a substantial question as to honesty, trustworthiness, or fitness as an attorney, there is an ongoing obligation to report it. Under CA, self reporting is required if sanctions are greater than 1k, 3 suits were filed against atty within 1 year or they are facing felony charges.

Question 73

Duties of subordinate lawyer

Answer 73

If an attorney is under control of another attorney who ratifies or orders them to take an action violating an ethical rule, the attorney is subject to discipline if it is a clear violation; however, a supervisor is solely responsible if the issue is debateble.

If a supervising attonrey ratifies an action that is a violation or knows of the conduct but fails to act, they are liable. Managing partners must make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers comports with professional obligations of an attorney, including non-atty assitants.