Professional Responsibility (ABA + CA)

Question 1

[PROF RESP] • 3 • Formation and Scope of Attorney-Client Relationship • Formation

Answer 1

A lawyer-client relationship is formed when: (1) a person seeks legal services from an attorney; AND (2) the attorney either (a) manifests consent to provide services, OR (b) fails to manifest lack of consent to do so AND the attorney knows or should know that the person would reasonably rely on the attorney to provide legal services.

Question 2

[PROF RESP] • 1 • Formation and Scope of Attorney-Client Relationship • Organization as a Client

Answer 2

A lawyer employed by an organization (i.e. a corporation or limited liability company) represents the organization acting through its duly authorized constituents. The lawyer must act in the best interests of the organization. In such a situation, the lawyer does not normally represent the officers, directors, or managers of the organization.

Question 3

[PROF RESP] • 4 • Formation and Scope of Attorney-Client Relationship • Proper Scope of Relationship

Answer 3

Generally, a client controls the goals of the representation and makes substantive decisions, including whether to accept settlement offers or plead guilty. However, the lawyer controls the means to accomplish those goals. Lawyers may limit the clients goals if reasonable under the circumstances AND the client consents the same.

Question 4

[PROF RESP] • 14 • Duty of Competence •

Answer 4

A lawyer owes his client a duty of competence, which requires that the lawyer possess the legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client. Under this duty, a lawyer may NOT take a case in an unfamiliar area of law UNLESS the lawyer will be able to seek help from an experienced lawyer. Incompetence exposes lawyers to (1) discipline by the bar; (2) disqualification in the litigated matter; OR (3) civil malpractice law suits. In California (CA), a lawyer is only subject to discipline if the lawyer intentionally, recklessly, or repeatedly fails to perform legal services with competence.

Question 5

[PROF RESP] • 6 • Duty of Competence • Duty to Communicate with Client

Answer 5

A lawyers duty to communicate with the client includes (1) keeping the client reasonably informed on the status of the matter; (2) returning client phone calls and inquiries promptly; AND (3) consulting with the client about strategy decisions and any matters requiring the clients consent. All settlement offers must be conveyed to the client.

Question 6

[PROF RESP] • 6 • Duty of Competence • Duty to Pursue a Matter Diligently

Answer 6

A lawyer owes his client a duty to diligently and promptly pursue the case to the end.

Question 7

[PROF RESP] • 3 • Withdrawal • Madatory

Answer 7

A lawyer MUST withdraw from the representation if (1) the lawyer is fired ; (2) the lawyers physical or mental condition materially impairs the representation ; OR (3) continuing the representation would violate an ethics rule or other law.

In CA, a lawyer must also withdraw if the lawyer knows or should know that the client is bringing an action without probable cause for the purpose of harassing or injuring a person. Proper withdrawal requires the lawyer to (1) provide timely notice to the client AND (2) promptly return any unspent fees, advanced expenses, and all of the clients papers and property. In CA, a lawyer may NOT hold client materials until his fees are paid.

Question 8

[PROF RESP] • 2 • Withdrawal • Permissive

Answer 8

A lawyer MAY withdraw upon a showing of good cause to the court. Examples of good cause include (1) when the client persists on a criminal, fraudulent, or repugnant course of action ; OR (2) the client fails to substantially fulfill an obligation after reasonable warning. Under the American Bar Association Model Rules of Professional Conduct (ABA), good cause also exists if (1) withdrawal will not materially damage the clients interests ; (2) the representation will unreasonably financially burden the lawyer; OR (3) the client has used the lawyers services to commit a crime or fraud.

Question 9

[PROF RESP] • 15 • Duty of Confidentiality •

Answer 9

A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. The duty of confidentiality is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested the information to be kept confidential or whether the use of the information will damage the client.

Under the ABA , a lawyer may disclose confidential information if (1) the client consents ; (2) the lawyer is ordered by law to do so; (3) the lawyer does so to defend himself in a malpractice action or suit to recover legal fees; (4) to prevent death or substantial bodily harm ; (5) to prevent the client from committing a crime or fraud (in which the lawyers services were used) that will result in substantial financial loss.

In CA , a lawyer may only disclose confidential information to prevent a crime that will result in death or substantial bodily injury if the lawyer (1) first makes a good faith attempt to counsel the client out of committing the crime and/or changing the clients course of action so that it will not result in death or substantial bodily harm AND (2) informs the client of the lawyers ability and/or decision to disclose the information.

If the client is an organization , and the lawyer becomes aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer may refer the matter to higher authorities within the organization. After reporting up, the ABA permits disclosure to an outside source if necessary to prevent substantial injury to the organization. However, CA only permits disclosure to an outside source if necessary to prevent death or substantial bodily harm.

Question 10

[PROF RESP] • 18 • Duty of Loyalty • Conflicts of Interest (in general)

Answer 10

A lawyer owes his client a duty of loyalty , which means he must act in the clients best interest and avoid conflicts. A conflict exists if (1) the representation is directly adverse to a current or former client; OR (2) there is a significant risk that the lawyer’s representation will be materially limited due to the lawyer’s present or former personal relationships or interests.

Question 11

[PROF RESP] • 17 • Duty of Loyalty • Conflicts between Clients (Former, Current, and Prospective)

Answer 11

A lawyer may NOT represent clients if (a) the representation is prohibited by law ; OR (b) the representation is of parties on opposite sides of the same matter in the same court.

A lawyer MAY represent clients whose interests conflict if (1) the lawyer reasonably believes (objective standard under ABA, subjective standard in CA) that he will be able to provide competent and diligent representation to each client; AND (2) each client gives informed consent in writing.

A lawyer may not participate in aggregate settlement of claims without the informed written consent of each client. In CA, a lawyer must also get informed written consent for potential conflicts. Additionally, if a conflict is purely personal , the lawyer only needs to provide written disclosure of the conflict.

Question 12

[PROF RESP] • 2 • Duty of Loyalty • Conflict of Interest - Former Lawyer for Government

Answer 12

Former government lawyers who worked personally and substantially on a matter may NOT work on that same case at a private firm UNLESS the government agency consents in writing. The conflict will not be imputed to the rest of the firm if the lawyer is properly screened (see Imputed Conflicts). In CA, a prosecutor may NOT work for a defendant from any of his previous cases.

Question 13

[PROF RESP] • 2 • Duty of Loyalty • Imputed Conflicts of Interest

Answer 13

Generally, conflicts of interest are imputed to the entire firm and the entire firm is disqualified from the representation. However, a firm will not be disqualified if (a) the conflict is purely personal ; OR (b) the conflict arises out of association with the lawyers previous firm and the lawyer is properly screened.

A proper screen requires that (1) the conflicted lawyer not share fees ; (2) written notice is provided to the former client; AND (3) a certificate of compliance is provided to the former client.

Question 14

[PROF RESP] • 2 • Duty of Loyalty • Self-Dealing

Answer 14

A lawyer must NOT engage in self-dealing or act in his own interest rather than the clients.

Question 15

[PROF RESP] • 1 • Duty of Loyalty • Business Ownership by a Lawyer

Answer 15

A lawyer may own and operate a business separate from the practice of law. However, he must be careful not to engage in a business that would pose a conflict of interest with his clients.

Question 16

[PROF RESP] • 3 • Duty of Loyalty • Pecuniary Interest in a Case

Answer 16

A lawyer may NOT acquire a pecuniary interest in the cause of action or subject matter of litigation where the lawyer is providing representation UNLESS the interest (1) is a lien authorized by law to secure the lawyer’s fee or expenses; OR (2) a contingency fee in a civil case. CA permits contingency fees in criminal cases.

Question 17

[PROF RESP] • 2 • Duty of Loyalty • Loans to Clients

Answer 17

Under the ABA, loans to clients, in excess of litigation expenses, are not permitted. However, in CA, loans are permitted IF the loan agreement is confirmed in a writing signed by both parties.

Question 18

[PROF RESP] • 1 • Duty of Loyalty • Serving on the Board of a Client’s Corporation

Answer 18

If a lawyer seeks to serve as a board member on an organization he represents, he must do so effectively and without jeopardizing his ethical duties to the organization as his client.

Question 19

[PROF RESP] • 3 • Duty of Loyalty • Lawyer-Client Business Transactions

Answer 19

Business transactions between lawyers and clients are permitted if (1) all terms are fair to the client; (2) all terms are disclosed in writing; (3) the client is advised to consult outside counsel ; AND (4) the client consents in writing. This rule applies when a lawyer accepts an ownership interest in a clients business as payment of all or part of the lawyers fees.

Question 20

[PROF RESP] • 2 • Duty of Loyalty • Sexual Relations with Clients

Answer 20

Under the ABA, lawyers may NOT engage in sexual relations with a client UNLESS the relationship existed before representation.

In CA, client sexual relations are permissible if (1) the lawyer continues to provide competent legal services ; (2) the relationship is not a condition for representation ; AND (3) the client does not enter into the relationship because of duress or undue influence.

Question 21

[PROF RESP] • 6 • Duty of Financial integrity • Ethical Amount of Attorney’s Fees

Answer 21

Under the ABA, a lawyers fee must be reasonable in light of the skill, experience, time, degree of specialty, and difficulty required for the task. In CA, the fee must not be unconscionably high.

Question 22

[PROF RESP] • 1 • Duty of Financial integrity • General Fee Agreements

Answer 22

Fee agreements must include (1) how the fee is calculated ; (2) what services are covered ; AND (3) the lawyer and client duties. Agreements are NOT required to be in writing under the ABA. In CA, all agreements must be in writing UNLESS (a) the fee to be charged is less than $1,000 ; (b) the work is routine work for a regular client; (c) the client is a corporation or business organization; OR (d) the circumstances of the engagement make a written agreement impractical or impossible.

Question 23

[PROF RESP] • 4 • Duty of Financial integrity • Contingency Fee Agreements

Answer 23

A contingency fee agreement is an agreement between the lawyer and client that the lawyers fees will be paid out of any recovery the client receives. A contingency fee agreement MUST: (1) be in a writing signed by the client ; AND (2) include (i) the percentage of recovery the lawyer will take , (ii) the expenses that will be deducted from recovery, and (iii) whether the lawyers percentage is taken out before or after expenses.

In CA, the writing must also include (1) how work or expenses not covered by the contingency fee will be paid ; AND (2) that the lawyers fees are negotiable.

The ABA prohibits the use of contingency fees in all domestic and criminal matters , while CA only prohibits contingency fees in domestic matters IF the agreement encourages divorce.

Question 24

[PROF RESP] • 1 • Duty of Financial integrity • Advancing Litigation Expenses

Answer 24

A lawyer may advance an indigent clients litigation expenses, provided the lawyer may later recover them as part of his contingency fee.

Question 25

[PROF RESP] • 3 • Duty of Financial integrity • Payment of Legal Fees by a Third Party

Answer 25

A third party may pay a clients legal fees IF (1) the client consents to the payment; (2) there is no interference with the lawyers independence of professional judgment or the attorney-client relationship; AND (3) information related to the representation remains confidential.

Question 26

[PROF RESP] • 4 • Duty of Financial integrity • Fee-Splitting with Non-Lawyers

Answer 26

A lawyer may NOT split fees with non-lawyers. Exceptions are permitted for (1) death benefits paid to the deceased lawyers firm or heirs for his work; (2) salaries paid to non-lawyer employees ; OR (3) court awarded legal fees that are shared with a non-profit that employed or recommended the lawyer.

Question 27

[PROF RESP] • 2 • Duty of Financial integrity • Fee-Splitting with Other Lawyers

Answer 27

A lawyer MAY share fees with lawyers inside of the firm. When a lawyer shares fees with lawyers outside of the firm , (1) the total fee must be ethical (ABA requires reasonable; CA requires not unconscionable); (2) written disclosure must be provided to the client; AND (3) the client must consent in writing. The ABA also requires that the fee splitting be proportional to the work done by each lawyer, unless each is jointly responsible.

Question 28

[PROF RESP] • 2 • Duty of Financial integrity • Referral Fees

Answer 28

Referral fees are generally prohibited , though lawyers may pay a reasonable fee to a lawyer referral service. A lawyer may refer a client to another lawyer or professional IF (1) the referral agreement is not exclusive ; AND (2) the client is informed of its existence and nature.

In CA, a lawyer may give a gift to a person who recommended his services as long as it is NOT given under the understanding that gifts will be given and/or referrals will be made in the future.

Question 29

[PROF RESP] • 8 • Duty of Candor to the Court •

Answer 29

A lawyer may NOT engage in conduct involving dishonesty or fraud. A lawyer shall not knowingly : (a) make a false statement of fact or law to a tribunal; (b) fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer; OR (c) offer or use evidence that the lawyer knows to be false.

Question 30

[PROF RESP] • 1 • Duty of Candor to the Court • Ex Parte Communications with the Court

Answer 30

A lawyer may NOT seek to influence the Court (a judge) or communicate the merits of a case without all parties present (ex parte) during a proceeding, unless the attorney is authorized by law to do so. During an authorized ex parte proceeding, the ABA specifically requires a lawyer to inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse.

Question 31

[PROF RESP] • 3 • Duty of Candor to the Court • Filing Frivolous Claims

Answer 31

An attorney may not file frivolous claims with the Court. Under Rule 11 an attorney avers that (1) there is a proper factual basis to any claim and/or defense; (2) legal contentions are accurate and warranted under existing law ; AND (3) that a claim is not being brought for a frivolous purpose.

Question 32

[PROF RESP] • 1 • Duty of Candor to the Court • Destruction of Discoverable Evidence

Answer 32

A lawyer must NOT alter or obstruct access to legally discoverable evidence.

Question 33

[PROF RESP] • 1 • Duty of Candor to the Court • Improperly Influencing Witnesses

Answer 33

A lawyer may NOT counsel or assist a witness to testify falsely OR to become unavailable. A lawyer may NOT request a person, other than a client, to refrain from voluntarily giving information to another party UNLESS (1) the other party is a relative, employee, or other agent of the client ; AND (2) the lawyer reasonably believes that silence will not adversely affect the persons interests.

Question 34

[PROF RESP] • 5 • Duty of Candor to the Court • Witness Perjury

Answer 34

A lawyer may NOT call a witness that the lawyer knows will perjure himself. However, the defendant in a criminal case has the constitutional right to testify on his own behalf. In this situation, the lawyer must (1) counsel the defendant not to perjure himself; (2) attempt to withdraw from the case; AND (3) under the ABA, the lawyer must tell the judge if the attempt to withdraw is unsuccessful. However in CA, the lawyer must allow the defendant to testify in a narrative fashion. If the lawyer later learns that a witness committed perjury, the lawyer must take reasonable remedial measures.

Question 35

[PROF RESP] • 1 • Duty of Candor to the Court • Payment to Expert Witnesses

Answer 35

Lawyers are permitted to compensate expert witnesses for time worked on the case IF (1) the compensation does NOT depend on favorable testimony from the witness; AND (2) the compensation is reasonable in light of factors such as the expert’s familiarity with the subject, his experience in the field and other similar factors.

Question 36

[PROF RESP] • 1 • Duty of Candor to the Court • Payment to Lay Witness

Answer 36

A lawyer may NOT pay a lay witness for his testimony. However, the lawyer may pay a witness (1) for expenses reasonably incurred (i.e. travel expenses, a place to stay, and meals during the time that the witness is required to be present at trial); AND (2) a reasonable compensation for loss of time.

Question 37

[PROF RESP] • 3 • Duty of Fairness to Adversary • Communications with a Represented Party

Answer 37

Where an attorney knows that a person is represented by counsel in a matter, it is a disciplinary violation for the attorney to speak to that person regarding the matter, unless that attorney has the permission of the other persons attorney. Even if a represented person agrees to speak with the attorney, it is still a violation without the permission of that persons attorney. This also covers any employee of an organization whose communication might bind or be imputed to the represented organization.

Question 38

[PROF RESP] • 3 • Duty of Fairness to Adversary • Extrajudicial Statements to the Public

Answer 38

A lawyer may NOT make extrajudicial statements to the public, which (1) the lawyer knows or should know will be disseminated by means of public communication AND (2) which will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors.

Several exceptions are permitted including extrajudicial statements made: (a) when it is reasonably necessary to rebut a prejudicial statement made by opposing counsel; (b) regarding matters in the public record ; (c) to inform the public of an ongoing investigation ; OR (d) to protect the client from substantial undue prejudice from recent publicity that was not self-initiated.

Prosecutors and their aides may NOT make statements that have a substantial likelihood of enhancing public disapproval of the accused.

Question 39

[PROF RESP] • 1 • Duty of Fairness to Adversary • Confidential Information Accidentally Sent by Opposing Counsel

Answer 39

A lawyer has a duty to notify opposing counsel of any confidential documents accidentally received AND to return any such documents.

Question 40

[PROF RESP] • 1 • Duty of Fairness to Adversary • Compliance with Discovery Requests

Answer 40

A lawyer must comply with reasonable requests for discovery of information or documents.

Question 41

[PROF RESP] • 2 • Duty of Fairness to Adversary • Special Rules for Prosecutors

Answer 41

Prosecutors are often held to a higher standard because they have a duty to administer justice. Prosecutors must disclose any exculpatory or mitigating evidence (evidence that tends to negate guilt) within a sufficient time to allow the defendant to properly prepare for trial. If unsure, a prosecutor may consult the Court to determine whether disclosure is necessary. Additionally, prosecutors may only proceed with a case if probable cause exists. Probable cause exists if there are sufficient facts to lead a reasonable person to believe that a crime was committed and that the defendant committed the crime.

Question 42

[PROF RESP] • 2 • General Duties Owed to the Public and Profession • Attorney Advertising

Answer 42

Advertisements are permitted if the ad: (1) is labeled as an ad; (2) is not false or misleading ; (3) identifies at least one lawyer responsible for its contents; (4) does not hold a lawyer out to be a specialist unless the lawyer is certified as such; AND (5) is kept in records for 2 years. In CA, it is presumed to be improper to advertise at a hospital OR include a guarantee or prediction in the ad.

Question 43

[PROF RESP] • 3 • General Duties Owed to the Public and Profession • Solicitation of Clients

Answer 43

A lawyer or his agents may NOT approach a party for potential representation in person, by telephone, or in a real time electronic manner for pecuniary gain UNLESS the lawyer has a family or prior professional relationship with the party. In CA, emails are permitted.

Question 44

[PROF RESP] • 1 • General Duties Owed to the Public and Profession • Professional Announcements

Answer 44

Lawyers may send professional announcements or letters to people in the area.

Question 45

[PROF RESP] • 2 • General Duties Owed to the Public and Profession • Unauthorized Practice of Law

Answer 45

A lawyer must NOT aid in the unauthorized practice of law. The practice of law is defined as anything that would call for the judgment, reasoning, or skill of a lawyer. However, a non-lawyer may work under the direct supervision of a practicing lawyer who is licensed in that jurisdiction.

Question 46

[PROF RESP] • 2 • General Duties Owed to the Public and Profession • Business Dealings with a Non-Lawyer

Answer 46

A lawyer may enter into business deals with a non-lawyer. However, a lawyer shall not form a partnership with a non-lawyer IF any of the activities of the partnership consist of the practice of law. Non-lawyers may NOT be partners, shareholders, officers, or control or direct the lawyers professional judgment. Additionally, a lawyer must be careful NOT to aid in the unauthorized practice of law.

Question 47

[PROF RESP] • 1 • General Duties Owed to the Public and Profession • Professional Misconduct

Answer 47

It is professional misconduct for a lawyer to: (1) violate the ethical rules ; (2) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer; (3) engage in conduct involving dishonesty, fraud, deceit or misrepresentation ; OR (4) engage in conduct that is prejudicial to the administration of justice.

Question 48

[PROF RESP] • 1 • General Duties Owed to the Public and Profession • Ethical Violations of Other Lawyers

Answer 48

Under the ABA, lawyers MUST report another lawyer or judges ethical violation(s) concerning any context to the appropriate professional authority if it raises a substantial question as to that persons honesty, trustworthiness, or fitness as a lawyer.

In CA, lawyers are not required to report violations, but they can be disciplined for knowing about a violation and doing nothing to prevent it. Additionally, lawyers must self-report if (1) charged with a felony; (2) convicted of a serious crime; OR (3) found civilly liable for fraud or breach of fiduciary duty, disciplined or sanctioned, or sued for malpractice three times within a year.