Professional Responsibility (AI) Flashcards
What must a lawyer do before entering into a business transaction with a client?
Fully disclose the terms in writing, ensure they are fair and reasonable, advise the client to seek independent counsel, and obtain informed written consent.
Refer to MR 1.8(a); CA RPC Rule 1.8.1 for specific guidelines.
What types of transactions are exempt from the rule regarding business transactions with clients?
Standard commercial transactions for products or services that the client generally markets to others, such as:
* Banking or brokerage services
* Medical services
* Products manufactured or distributed by the client
* Utilities’ services
These exemptions apply as long as the transactions are standard commercial practices.
Under the Model Rules, when is a lawyer prohibited from negotiating for literary or media rights?
Prior to the conclusion of the representation of a client.
This prohibition is outlined in MR 1.8(d).
Can a lawyer agree to a fee consisting of a share in ownership of literary property?
Yes, if the arrangement does not result in an unreasonable fee and complies with the rules regarding business transactions with a client.
This is permissible under the Model Rules.
Does California have a specific ethics rule prohibiting negotiating for literary or media rights?
No, but CA RPC Rule 1.8.1 regarding business transactions with clients applies.
In criminal cases, conflicts of interest can be managed with informed written consent from the client.
What is the rule regarding soliciting gifts from clients?
A lawyer may not solicit or prepare an instrument for a substantial gift unless related to the client.
Related persons include those with a close familial relationship, as per MR 1.8(c).
What are the conditions under which a lawyer in California can prepare an instrument for a substantial gift to themselves?
If the lawyer is related to the client or if the client has been advised by an independent lawyer.
This aligns with CA RPC Rule 1.8.3.
Can a lawyer accept an unsolicited gift from a client?
Yes, if the transaction meets general standards of fairness.
Gifts given as tokens of appreciation are generally acceptable, but substantial gifts may be voidable.
What is the rule regarding a lawyer’s promise to limit malpractice recovery in California?
A lawyer is prohibited from making such an agreement with a client.
This is stated in CA RPC Rule 1.8.8(a).
Under what condition can the Model Rules allow a lawyer to limit malpractice liability?
If the client is represented by another independent lawyer in making the agreement.
This is contrary to California’s stricter prohibition.
What do both the Model Rules and CA RPC permit regarding settlement of legal malpractice claims?
Settlement with an unrepresented client or former client, provided the client is informed in writing about retaining new counsel.
This is outlined in MR 1.8(h)(2); CA RPC Rule 1.8.8(b).
What authority does the client have regarding legal representation?
The client has the ultimate authority to determine the purposes of legal representation within the limits of the law and the lawyer’s professional obligations.
This is outlined in MR 1.2 and CA RPC Rule 1.2.
Who decides the objectives of legal representation?
The client determines the objectives of the representation.
The lawyer must abide by these decisions while determining the means to achieve them.
What can a client negotiate with their lawyer?
A client can negotiate the scope of representation, including:
* Duration
* Subject matter
Examples include limiting representation to specific aspects like tax issues in a real estate transaction.
True or False: A client has a constitutional right to compel their lawyer to assert certain issues.
False.
A lawyer may decide not to press issues based on their professional judgment (Jones v. Barnes, 463 U.S. 745 (1983)).
Who must communicate offers of settlement to the client?
The lawyer must communicate offers of settlement to the client.
The final decision to accept any offer rests with the client.
What happens if a lawyer agrees to a settlement without client consent?
The lawyer is subject to discipline, but the opposing party may enforce the agreement if the lawyer acted with apparent authority.
Who decides whether a client will testify in a criminal case?
The decision belongs to the client.
This is stated in MR 1.2(a) and CA RPC Rule 1.2(a).
Fill in the blank: Waiving the right to a jury trial is exclusively the _______ decision.
[client’s]
What authority does a lawyer have regarding procedural tactics?
The lawyer has the authority to make most decisions related to strategy and methods for achieving the client’s goals.
This includes cross-examination and choosing a theory of the case.
Can a lawyer limit the objectives of representation?
Yes, if the limitation is reasonable, not prohibited by law, and the client provides informed consent.
This is outlined in MR 1.2(c) and CA RPC Rule 1.2(b).
What must a lawyer maintain when representing a client with diminished capacity?
An ordinary lawyer-client relationship.
This is stated in MR 1.14(a).
What protective action can a lawyer take for a client with diminished capacity?
The lawyer may take reasonably necessary protective action, including:
* Consulting with empowered individuals or entities
* Seeking appointment of a guardian
This is applicable when the client is at risk of substantial harm.
When can a lawyer reveal confidential information about a client under disability?
When taking protective action, including seeking the appointment of a guardian, but only to the extent necessary to protect the client’s interests.
In emergency situations, what legal actions can a lawyer take on behalf of a person with diminished capacity?
A lawyer may take legal action if the person’s health, safety, or financial interests are threatened with imminent harm.
The lawyer must reasonably believe that the person has no lawyer or representative available.
What is a lawyer prohibited from counseling regarding client conduct?
A lawyer is prohibited from counseling or assisting in conduct known to be criminal or fraudulent.
In California, this also includes violations of laws or tribunal rulings.
What must a lawyer do if a client’s course of action is already ongoing and criminal?
The lawyer must avoid assisting the client and may need to withdraw from representation.
In some cases, the lawyer may need to publicly disaffirm any previous opinions provided.
What must a lawyer in California not do regarding litigation?
A lawyer must not:
* Bring or continue an action without probable cause for the purpose of harassment
* Present a claim not warranted under existing law without a good-faith argument for change
This is outlined in CA RPC Rule 3.1(a) and MR 3.1.
What is the duty of an attorney when withdrawing from representation?
To mitigate any adverse impact upon the client.
This duty emphasizes the importance of minimizing harm to the client during withdrawal.
What is mandatory withdrawal according to the Model Rules?
A lawyer must withdraw from representation if failure to do so would result in violating ethics rules or other law.
Refer to MR 1.16(a)(1) for specific guidelines.
Under what condition must a lawyer withdraw if the client suggests a course of conduct that violates ethics rules?
Only if the client demands such conduct.
This distinction is crucial for ethical practice.
What triggers mandatory withdrawal under the CA RPC?
If a lawyer knows or reasonably should know the representation would result in a violation of the CA RPC or the SBA.
See CA RPC Rule 1.16(a)(2) for details.
When must a lawyer withdraw due to their own health issues?
When their physical or mental condition materially impairs their ability to represent the client.
This is outlined in MR 1.16(a)(2).
What must a lawyer do if they know a client is acting in bad faith?
Withdraw from representation if the client is asserting a claim without probable cause for harassment.
Refer to CA RPC Rule 1.16(a)(1) for specifics.
Does a client have the right to discharge their lawyer?
Yes, a client has an absolute right to discharge a lawyer for any reason.
This right is subject to certain conditions regarding ongoing representation.
What must a lawyer do upon being discharged by a client?
Withdraw from the representation unless ordered by the court to continue.
The lawyer may recover fees due for their work.
What is permissive withdrawal?
A lawyer may withdraw if they can do so without materially harming the client.
This principle is stated in MR 1.16(b)(1).
Under the Model Rules, when can a lawyer withdraw even if it harms the client?
When the client persists in a criminal or fraudulent course of action, among other reasons.
Specific scenarios are listed in MR 1.16(b).
What is one scenario under California law that allows for withdrawal?
If the client insists on a claim not warranted under existing law.
This is detailed in CA RPC Rule 1.16(b).
What procedural requirement must a lawyer fulfill before withdrawing?
Give the client reasonable notice to obtain new representation.
This is mandated by MR 1.16(d) and CA RPC Rule 1.16(d).
What must a lawyer obtain if permission for termination is required by tribunal rules?
Court approval before terminating representation.
Refer to CA RPC Rule 1.16(c) and MR 1.16(c).
What duty does a lawyer have upon termination of representation?
To take reasonable measures to minimize harm to the client.
This includes returning client papers and property.
What must a lawyer return to the client upon termination?
All papers and property to which the client is entitled.
This is outlined in MR 1.16(d) and CA RPC Rule 1.16(e)(1).
What is required regarding fees upon termination of representation?
The lawyer must refund any unearned part of a fee paid in advance.
This does not apply to true retainer fees.
What happens to a lawyer’s entitlement to fees upon client discharge?
The lawyer is entitled to fees already earned but not yet paid.
This is governed by MR 1.16(d).
How are fixed or hourly fees addressed upon termination?
The lawyer can recover in quantum meruit for services rendered.
A cap on recovery may apply.
How are contingent fees calculated in California?
Based on the reasonable value of services.
This is a standard practice for contingent fee arrangements.
