Professional Responsibility - Bar Flashcards
1
Q
What are the 3 ways to create an attorney client relationship?
A
(1) Expressly
(2) Implied through conduct
(3) Appointment by a court
2
Q
What are the 4 groups/areas to which lawyers have duties?
A
(1) Duty to the Client
(2) Duties to the Profession
(3) Duties to Opposing Counsel (or third parties)
(4) Duties to the Court
3
Q
Name duties under the duty to the client
A
4
Q
Name duties under duties to the profession
A
5
Q
Name duties to opposing counsel
A
6
Q
Name duties to third parties
A
7
Q
Name duties to the court
A
8
Q
Six duties to mention on every essay
A
Duty of Loyalty
Duty of Confidentiality
Duty of Competence
Duty of Financial Integrity
Duty of Fairness to Opposing Counsel
Duty to Report (under duty to profession)
9
Q
For fee agreement, what 4 things to look for?
A
- Whether fee reasonable
- Whether fee must be in writing
- If contingency, whether type of case ok
- If contingency, whether required information therein is ok
10
Q
Define rule for excessive fees under both aba and ca
A
Under the ABA, an attorney’s fees must be reasonable, based on the attorney’s experience, the time and preparation required, and the nature of the case.
Under the CA rules, an attorney’s fees must not be unconscionable.
11
Q
What is the general writing requirement rule under both aba and ca
A
Under the ABA, agreements do not need to be in writing unless for a matter on contingency or fee splitting agreements. Under CA, all agreements must be in writing unless:
(1) Less than $1K
(2) Client is a corporation
(3) Client waives in writing the need for a written agreement
(4) Regular routine work between the lawyer and client
(5) Emergency work
12
Q
What are the 2 types of matters in both the ABA and CA that cannot be subject to contingency?
A
(1) Criminal cases
(2) Domestic relations cases except for those involving collecting a post-judgment balance
13
Q
What are the 3 requirements that must be in any contingency agreement under both the aba and ca, and 2 additional requirements for CA?
A
(1) How fee will be calculated
(2) What and when expenses will be deducted
(3) Expenses the client will have to pay for regardless of the outcome
(4) CA - that the contingency rate is not set by law and the client may negotiate the rate
(5) CA - how work not covered by the contingency will be funded
14
Q
In a contingency case where the lawyer is discharged, how is his payment treated?
A
the lawyer is entitled to payment for the reasonable value of services provided, in the forum of quantum meruit after the client has recovered in the case, but not before. Also, if the lawyer is discharged due to ethical violations, the court may determine that the lawyer forfeited the fee.
15
Q
What is the rule for double billing in the aba?
A
Under the ABA, double billing is not allowed.
16
Q
What is the rule for double billing in ca?
A
In CA, double billing is allowed if:
(1) The fees are not unconscionable;
(2) Lawyer informs client of the practice; AND
(3) Both clients agree in writing.
17
Q
When is fee splitting among LAWYERS acceptable in the ABA?
A
(1) Total fee is reasonable;
(2) Division of fee is proportionate to work performed or each lawyer assumes joint responsibility of the entire representation; AND
(3) Client consents in writing.
18
Q
When is fee splitting among LAWYERS acceptable in CA?
A
(1) Total fee is not increased by virtue of the fee splitting agreement;
(2) Lawyers fully disclose terms to client and enter into written agreement between themselves; AND
(3) Client consents in writing.
19
Q
When is the general rule and four exceptions for fee splitting among NON LAWYERS under the aba and ca?
A
Fee splitting with non-lawyers is not permissible under the ABA and CA authorities, except where:
(1) Payment of death benefits to a deceased lawyer’s family
(2) Purchasing a law practice where funds go to the family of the deceased lawyer
(3) Fees shared with non legal staff as part of regular compensation
(4) Sharing fees with a non-profit organization (ABA - court awarded fees, CA - no distinction, and payment for referral services ok)
20
Q
Under both the ABA and CA, when are reciprocal referral agreements allowed?
A
(1) Not exclusive; AND
(2) Client informed.
21
Q
What is the rule for referral gifts under the ABA?
A
Under the ABA, referral gifts are prohibited unless they are a nominal, token gift.
22
Q
What is the rule for referral gifts under CA?
A
Under CA, referral gifts are permitted so long as the gift is not given in consideration that a referral would be forthcoming.
23
Q
What is the rule for the Duty to Safeguard Property (funds)?
A
The attorney must keep client funds in a client trust account and withdraw the funds as they are earned or expenses are incurred.
24
Q
What is the rule for the Duty to Safeguard Property (funds) as it relates to flat fees, in CA?
A
The lawyer may deposit flat fees into the lawyer’s operating account so long as the lawyer:
(1) Informs the client in writing that the fees may be moved into a client trust account;
(2) Informs the client that the client is entitled to the payment back for any payments not earned; AND
(3) Client consents in writing, for fees over $1K.
25
What is the rule under the ABA and CA as it relates to the speed at which clients should be given any proceeds or refunded payments?
A client should promptly be given their proceeds.
26
What is the rule in CA regarding arbitration and the presumption when an attorney does not provide prompt payment after a dispute?
In CA, a client may force an attorney go attend arbitration in a fee dispute, although the attorney may not force the client to do so. Also, if following a dispute resolution, the lawyer does not move the funds to the client within 45 days, there is a presumption that the lawyer is violated the rules.
27
Under the ABA and CA, what are the 4 requirements to safeguard one's property?
(1) Identify and label the property;
(2) Keep the property in a safe place;
(3) Record the property in a journal; AND
(4) Do not commingle the property with the lawyer's property.
28
what is the difference between the duty of competence and the duty of diligence?
the duty of competence relates to brain power while the duty of diligence relates to promptness
29
Define the Duty of Competence
The attorney must exercise the skill, knowledge, preparation, and thoroughness reasonably necessary for representation.
The attorney may gain competence, for instance, by associating with a lawyer in the field or by learning the material, so long this path does not result in undue delay or expense to the client.
CA follows the same standard, but will only discipline the attorney for repeated or reckless violations.
30
Define the Duty of Diligence for both the aba and ca
A lawyer must act with reasonable diligence and promptness in representing a client.
Exam Tip – Issue Spotting
o Duties of competence and diligence any time question indicates lawyer is newly admitted or being practicing area of law with which he is unfamiliar.
31
What is the duty to COMMUNICATE including the small add on point for CA?
Under the duty to communicate, the lawyer must communicate all significant developments to the client and must comply with reasonable requests for information.
A lawyer may delay communicating information if they reasonably believe the client will act imprudently. In CA, a lawyer may delay communication information if they reasonably believe the client will cause harm to themself or another.
Exam Tip – Issue Spotting
o Failure to inform of settlement: Duty to communicate & Scope of Representation
o No making false statements could also fall here
32
What is the rule on communicating when the lawyer has no liability insurance?
In CA, the lawyer must communicate this at the start of the engagement. If insurance lapses during the engagement, the attorney has 30 days to inform the client.
Exceptions
(1) Less than 4 hours work
(2) In house counsel or government agency
(3) Acting in emergency situation
33
What is the main rule on the Scope of Representation, under the aba and ca?
The attorney must abide by the scope of the representation. Decisions such as whether to settle, whether to plead guilty, whether to testify in a criminal trial, and whether to appeal are reserved for the client. Legal, strategic decisions are reserved for the lawyer.
34
What is the rule on duty to withdraw - 4 situations, where the last one only applies to CA?
The lawyer MUST withdraw when:
(1) Representation of the client will result in the attorney violating the law or a professional duty
(2) Lawyer's physical or mental state materially impairs ability
(3) Where the client discharges the lawyer
(4) In CA, where lawyer knows client is acting to maliciously injure or harass another
35
5 permissive routes of withdrawal under the aba and ca?
(0) Lawyer can withdraw without material adverse effects on client
(1) Client used services or insists on services related to crime or fraud
(2) Client fails to fulfill obligation after notice and request
(3) Representation unreasonably difficult (mental or physical)
(4) Other good cause
in California after a lawsuit has been filed, an attorney cannot withdraw from representing a client without attaining the judge's permission to do so.
36
What is the duty to the client upon withdrawal?
Upon withdrawal, the lawyer must:
(1) Provide the client with notice and time to find another attorney
(2) Return unearned fees
(3) Return papers and property
Under the ABA, a lawyer MAY retain documents for the purpose of getting paid
Under CA, a lawyer MAY NOT hold onto documents in order to get paid.
Under CA, you need judge permission first before you can withdraw
37
Define the duty of confidentiality under both the aba and ca
Under the duty of confidentiality, a lawyer must not disclose information related to the presentation. The duty is broader than the attorney client privilege, it applies to all information related to the representation, not just that obtained from in communications with the client. The duty survives past the death of the client and the termination of the attorney client relationship. In CA, the duty also arises within the Attorney's Oath, where the lawyer promises to "maintain inviolate the confidences" of his client. CA Business and Professions Code 6068.
- Note: When an attorney represents co-clients, attorney client privilege and confidentiality is waived as between them. Attorney may represent co-defendants, but must advise them of the risk from losing confidentiality, and obtain written consent.
- Exam Tip
o If conflict of interest, raise duty of confidentiality. Many exams often raise the issue even if the lawyer has yet to disclose any information; let grader know about likelihood of disclosure.
38
ABA - 7 exceptions to duty of confidentiality where attorney MAY disclose
(1) Consent or authorization
(2) Necessary to prevent death or substantial bodily injury
(3) Client using lawyer services to commit financial crime or fraud
(4) Litigation with client
(5) Securing ethics advice
(6) Determining conflicts of interest
(7) Court order
39
CA - 4 exceptions to duty of confidentiality where attorney MAY disclose
(1) Necessary to prevent death or substantial bodily injury
(2) Litigation with client
(3) Ethics advice
(4) Court order
40
In CA, if necessary to prevent death or substantial bodily injury, what must the attorney do first?
(1) Good faith effort to discourage client from doing so
(2) Inform client that you will have disclose confidences
(3) Only disclose amount of confidential information necessary
41
Define attorney client privilege
Attorney client privilege is an evidentiary privilege held by the client whereby the client can refuse to testify or prevent the attorney from testifying as to confidential communications between the lawyer and the client or their respective agents. The lawyer may also assert the privilege on the client's behalf. Under the ABA, the privilege continues indefinitely past the termination of the attorney client relationship. On the other hand, in CA, the privilege ends upon completion of the settlement of the client's estate. Note that if the client has disclosed the information to others, the information is no longer public, and the privilege may not apply.
o Note: Attorney client privilege would not apply to something a family member or another third party told the attorney. Only applies to communications between the client or their respective agents.
o Note: If lawyer or client has told someone the information, it is likely no longer confidential, and so attorney client privilege would not apply.
o Note: If on stand and privilege does NOT apply, then you can share the confidential communication – don’t address this part.
42
3 exceptions under ABA and CA where privilege does not apply
and 1 just for CA
(1) Client using lawyer services to support a crime or fraud
(2) Dispute between lawyer and client
(3) Civil litigation where both parties represented formerly by same attorney
(4) In CA, where necessary to prevent death or substantial bodily injury
43
Overall rule for work product
Under the ABA and CA authorities, work product privileges protect materials prepared in anticipation of litigation.
Note: The privilege can be waived when disclosed in a way that creates a likelihood a potential adversary can see it.
44
what are 2 types of privilege
1 - absolute
2 - qualified
45
define absolute privilege under both aba and ca
Absolute privilege extends to an attorney's mental impressions, opinions, legal theories, and legal research.
Such information is absolutely protected (i.e., is not discoverable)
46
define qualified privilege under the ABA
For all other materials, the party must show
(1) substantial need for the materials; AND
(2) undue hardship in obtaining the information in another way.
o Generally, witness statement obtained through an interview by the attorney or her agent is at least qualified work product, and may become absolutely privileged if it also contains the attorney’s impressions.
47
define qualified privilege under CA
for all other materials, the requesting party must show that denial of discovery
(1) would result in great prejudice to the party, OR
(2) will result in an injustice
48
leading rule for duty of loyalty
A lawyer has a duty to act in the best interests of their client, which means avoiding potential and actual conflicts of interest.
49
imputation rule and two exceptions
the conflicts of one lawyer are imputed to those in the rest of the firm (meaning all of the lawyers also have the conflict)
however, imputation does not occur where the conflict is a personal one or the client waives imputation
50
define informed consent
informed consent means the client is aware of the foreseeable risks and consequences of the action
51
3 requirements for effective screening
(1) Notice to client
(2) Completely screen disqualified attorney from receiving fees, access to information
(3) Provide certification of compliance to client
52
restriction in CA relative to screening
Screening is not permissible where the lawyer has substantially participated in the matter
53
define substantially related
(1) Same transaction or dispute or
(2) Substantial risk information from one representation would materially advance the other client
54
Duty of Loyalty
Define rule for prospective client and the rule for screening
A lawyer must not accept representation of a new client against a prospective client where the matter is the same or substantially related and the lawyer has material information that could harm the prospective client, unless both clients consent in writing.
The conflict is imputed to others but may be cured with screening.
55
Duty of Loyalty
Former client
1 rule not related to a firm
- An attorney must not represent a client against a former client where the matters are substantially related unless the client gives informed consent.
56
other 2 rules - duty of loyalty - former client
An attorney must not oppose a former client from the attorney's former firm if the matters are substantially related and the lawyer has material information about the former client, unless the client provides informed written consent.
Under the ABA, the imputation may be cured with screening. Under CA, the imputation is not permissible where the attorney worked substantially on the matter.
When the lawyer departs, the rest of the attorneys can oppose the former client so long as the matters are not substantially related and none of the remaining lawyers possess material information related to the former client's representation.
Note: For ALL of the former client conflicts we discussed, other than in same litigation, former client can consent/waive.
57
Rule for current clients and potential clients
An attorney must not represent a client where there is either direct adversity with another client or there is a significant risk that the lawyer's representation will be materially limited by the lawyer's responsibilities to a former client, a current client, or a third person.
A lawyer may nonetheless represent the parties if
(1) the representation is not prohibited by law
(2) the lawyer is not representing the clients on opposite sides of the same litigation
(3) the lawyer reasonably believes he can provide adequate representation despite the limitation (a subjective belief under the CA), and
(4) both parties provide written informed consent.
Note in CA, an attorney must disclose all potential conflicts, even if there is no doubt that such conflicts will materialize into an actual conflict.
Also in CA, a purely personal conflict (e.g., where the attorney has or had an intimate relationship with opposing counsel) does not require consent but rather requires that the attorney inform the client in writing.
Note
Note: Mere economic adversity does not amount to a conflict. Lawyer can represent competitors so long as clients not adverse to each other in any of the matters.
Note: Conflicts include religious beliefs.
58
When determining whether a relationship fits under the personal conflict - what are the rules for the ABA?
Under the ABA, a conflict consists of close family relations with opposing counsel (and require written consent)
59
what are the rules for ca?
a personal conflict exists for
- close family relations
- relationships with parties, witnesses, or attorneys
60
Duty of Loyalty -
Government to Private Work
Where a lawyer moves from government to private work, a lawyer may not represent a private client where the lawyer participated personally and substantially in the matter while at the government, unless the government agency consents. Such a conflict is imputed to others yet may be cured by screening.
Also, even if not personally and substantially involved, the attorney should not represent the private client if the attorney acquired confidential information about the client that could be used against them. Imputation can be cured with screening.
61
Duty of Loyalty - Private Sector to Government Sector
Upon moving to the government sector from the private sector, an attorney must not represent a client where the attorney participated personally and substantially in the matter, unless the government agency consents. Imputation can be cured with screening.
62
Duty of Loyalty - Prior Work as a Judge, Law Clerk, Or Third Party Neutral
A former judge, law clerk, or third party neutral must not represent any former party in the same matter without the consent of all parties. Imputation may be cured by screening including with notice to all parties and to the court. In CA, screening of a settlement judge or third party neutral will not work.
Such groups cannot negotiate with a prior party for employment with the exception of law clerks.
63
Rule and conflicts regarding sexual relations - ABA and CA
An attorney must not engage in sexual relations with a client unless the relations existed prior to formation of the attorney client relationship.
If an attorney did have sexual relations with a client, the conduct is not imputed to others in the firm.
CA holds the same standard but provides an exception for marriages or registered domestic partners.
64
Duty of Loyalty - When Representing an Organization
A lawyer employed by an organization represents the organization and must act in its best interest. Representation of an individual employee at the same time is ok if no conflict exists and the individual is clear as to the priority lying with representation of the corporation.
65
Duty of Loyalty - Reporting Illegal Activity - ABA and CA
If the lawyer believes the organization is engaged in illegal activity, under both the ABA and CA authorities, the lawyer must escalate the issue to a higher authority IF there is material risk of substantial injury to the organization, including to the Board of Directors if necessary (i.e., where the CEO or Chief Counsel does not respond effectively).
Under the ABA, if the highest authority fails to effectively address the situation, the attorney may communicate the issue to outside entities. The attorney should only disclose the amount of information necessary, though confidential information may be revealed (if necessary).
Under CA authorities, if the highest authority fails to effectively address the situation, the attorney must not disclose information unless related to preventing death or substantial bodily injury, and should withdraw from the matter or resign from employment if continued representation would result in the attorney's violation of the law or the professional duties.
66
Duty of Loyalty - SOX rule
Where in-house counsel discovers violation of securities laws:
(1) Report matter to CEO or Chief Counsel
(2) If they do not respond, report to Board,
(3) If necessary to prevent fraud or substantial injury to organization, MAY disclose to SEC without client consent.
67
Duty of Loyalty
Aggregate Settlements or Two Guilty Pleas
A lawyer must not accept aggregate settlements for multiple clients or an aggregate plea deal unless all terms are fully disclosed to all clients and the client give written informed consent.
68
Duty of Loyalty - Compensation from Third Parties - Rule
Must not accept compensation from third parties unless:
(1) No interference with attorney's professional judgment;
(2) No breach of duty of confidentiality; AND
(3) Client gives informed consent, written in CA.
California provides that disclosure not required if lawyer under court order to accept payment or is working for public agency or not for profit
69
Duty of Loyalty
Rule in CA when attorney represents insurance company and the insured
The lawyer must not file a direct action against the insurer in an UNrelated case unless the insurer consents. If a conflict arises, inform client and inform him to obtain separate counsel.
However, lawyer has no duty to insurer when insurer interest in each matter is only as an indemnity provider and not a direct party in the action.
70
Duty of Loyalty
ABA rule and CA rule on acquiring literary or media rights?
Under the ABA, an attorney may not obtain literary or media rights until a case is fully over, including any appeal.
In CA, an attorney may obtain literary or media rights. Treat as a business transaction.
71
Duty of Loyalty
Business Transactions
Mneumonic
First Discuss it Over Coffee
(1) Fair terms to the client;
(2) Disclose in an understandable writing;
(3) Advise client in writing to obtain independent counsel; AND
(4) Client consents in writing.
o Examples: accepting stock as payment; borrowing money from client; purchasing property from client; selling property to client; taking interest as security for payment
o Note: Does not apply to standard commercial transactions (e.g., donut)
72
Duty of Loyalty
Accepting Gifts from Clients
ABA rule
An attorney may not solicit substantial gifts from clients. Also, an attorney must not prepare an instrument in which he receives a gift unless the attorney and client are related.
73
Duty of Loyalty
Accepting Gifts from Clients
CA rule
In CA, an attorney may accept a gift from a client long as:
(1) client has been advised by an independent lawyer, OR
(2) gift is fair and there is no undue influence
74
Rule for CA and the ABA in acquiring a proprietary interest in the case?
A lawyer may not obtain a proprietary interest in the cause of action unless:
(1) Acquiring a lien to secure the lawyer's fees
(2) Contingency contract
75
Rule for ABA in providing financial assistance to clients
(1) Contingency case where advance expenses pending repayment based on outcome of case
(2) Pro bono client where advance expenses and no repayment
(3) Pro bono client were modest gifts for living expenses and no repayment. However, do not advertise such, do not promise such gifts, do not seek reimbursement
76
CA rule for when OK to provide financial assistance (loans)
(1) Anything in client best interests so long as attorney and client enter into written agreement
(2) Contingency case as above
(3) Pro bono client to advance expenses as above
77
Rule for ABA and for CA where an attorney tries to limit malpractice liability?
Under the ABA, a lawyer may limit his liability so long as the client is represented by independent counsel.
Under CA, a lawyer must never limit malpractice liability.
78
Duty of Loyalty - settling a malpractice claim
ABA and CA rule
Under the ABA, an attorney must not settle a malpractice claim unless he advises the client in writing to seek independent counsel, while in CA, the client must be represented by independent counsel.
79
general rule related to committing crimes and dishonesty
An attorney is subject to discipline for crimes or acts of dishonesty regardless if these relate to the practice of law. However, the any act including a crime must involve dishonesty in order for the attorney to be disciplined.
80
Rule on discrimination and harassment
A lawyer can reject a case
However, any acts of true discrimination or harassment or retaliation must be self reported to the bar
81
Where are lawyers subject to discipline in?
- In each state they practice in
- If appearing in front of a court, apply that state's rules
- Otherwise apply the predominant effect test - whereever effect of conduct was
82
Rule on court appointments
A lawyer must not seek to avoid court appointments unless for good cause
83
3 requirements when representing clients with diminished capacity
(1) Try to maintain normal attorney client relationship;
(2) Seek protective action (e.g., appoint guardian) if reasonable belief necessary; AND
(3) Only disclose amount of information necessary.
- Note standards for conflict checks are relaxed in quick advice program under court or non profit organization
84
Duty of Loyalty - listen
- EXAM TIP
o Fact triggers
Gifts from client – soliciting gift or preparing the instrument
Financial assistance to client
Accepting aggregate settlement on behalf of multiple client
Accepting compensation from a third person
Limiting liability
Literary or media rights
Proprietary interest in cause of action
85
What is the ABA and CA rule about Duty to Avoid the Unauthorized Practice of Law?
A lawyer must not engage in or assist someone else in the unauthorized practice of law.
86
A lawyer must only practice where they are licensed. What are the 4 exceptions?
(1) Working in house or at a federal agency
(2) Pro hac vice
(3) Associating with an active local lawyer
(4) Mediation
87
What is CA rule regarding hiring a disbarred attorney?
In CA, a lawyer may hire a disbarred/involuntarily inactive/suspended/resigned member to do non attorney work, so long as notice is provided to both the State Bar and to the client.
88
3 requirements on advertisements
(1) No false or misleading statements;
(2) Contain name and contact information of at least one lawyer; AND
(3) Not mention lawyer is a certified specialist unless certification by an approved agency (which in CA, the Bar must approve), and the name of the certifying agency is also listed
89
3 characteristics of ads that California assumes violates the rules
(1) Express warranty
(2) Testimonial without a disclaimer
(3) No fee without recovery - without stating what costs the client may be liable for
90
4 situations where it is ok for recommendations of the lawyer's name
(1) Costs for advertising, legal service plan, or non profit lawyer referral service
(2) Paying to purchase a law practice
(3) Non exclusive reciprocal referral agreements where client informed
(4) Isolated gifts or tokens of appreciation
91
3 situations where a law firm name is misleading
(1) Implies connection to government or charitable organization
(2) Implies partnership when it is not
(3) Includes name of lawyer not associated with firm (other than deceased former lawyer)
92
General rule to not solicit clients
A lawyer must not pursue, LIVE, in person solicitation for PECUNIARY gain (including telephone and video conversations)
Solicitation by email and recorded message are allowed
93
4 exceptions to general rule
(1) Family or friends
(2) Other lawyers
(3) Current or former clients
(4) Routine user of services
94
May not solicit anyone by either method if - 2 situations
(1) Client states they do not want to be contacted
(2) Solicitation involves coercion, duress, harassment
95
What is Duty to Supervise?
Partners and supervisors must make reasonable efforts to ensure their employees follow the ethical rules.
96
When is a lawyer responsible for another lawyer's misconduct?
What is key phrase?
(1) Lawyer ordered the conduct
(2) Lawyer ratified the conduct
(3) Lawyer is partner or supervisor and failed to mitigate consequences
"Responsibility is multiplied not divided"
97
What is the rule for a subordinate lawyer? and what other issues does it trigger?
A subordinate lawyer must follow the ethical rules even when the supervisor says otherwise unless there is an arguable question law or the rules
Duty of Fairness to Opposing Counsel or to court
Duty to Report
* Issue spot – fairness to opposing counsel; not filing frivolous matters with court
* Issue spot – must report your boss if he told you to break last
98
Duty to Report - ABA rule
Under the ABA, a lawyer who knows another lawyer has violated the rules of professional conduct in a way that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer MUST inform the appropriate professional authority. This rule does not require a lawyer to disclose information otherwise protected by the duty of confidentiality.
99
Duty to Report - CA rule
Under the CA rules, an attorney who knows of credible evidence that a lawyer committed a crime in CA or committed an act that raises a substantial question as to the lawyer's honesty, trustworthiness, or fitness as a lawyer must report the conduct to the appropriate authority. The conduct must involve fraud, deceit, or dishonesty.
100
5 istances in CA where an attorney has a duty to self report
(1) Sued for malpractice 3 times in one year
(2) Found civilly liable for fraud, breach of fiduciary duty, etc.
(3) Sanctioned more than $1K
(4) Charged with a felony or convicted of a serious crime
(5) Disciplined in another jurisdiction
101
Rule on whether an attorney can give a recommendation
An attorney may give a recommendation for the client (to a third party), but if the recommendation contains harmful information, the attorney must receive the client's consent first
102
rule for non compete agreements? rule for other type of restrictive settlement - aka don't work here
Prohibited except for in a retirement agreement or in sale of law practice
103
4 requirements for the sale of a law practice
(1) Must sale the entire practice or a field of law, but in CA, must sell substantially all of the operations
(2) Under ABA attorney should not practice in the geographic area while in CA, there is no such restriction though the parties can put this in their agreement
(3) Client must receive notice, time to find new counsel if they would like and provide written informed consent
(4) Existing fees may not increase
104
rule relating to non-legal services
Lawyer is subject to the RPC for non-legal services when:
(1) Services are of the type that are not distinct from legal services, or
(2) Lawyer fails to take reasonable measures to inform client that the services are not legal services and that attorney client protections do not apply
105
Duty of Candor - 5 requirements
(1) No false statements of fact or law and correct them
(2) Do not offer evidence that you KNOW is false. In ABA, if KNOW false, must dissuade client and if necessary tell judge. In CA, ask client questions in narrative form. if reasonable belief, it's ok.
(3) Disclose adverse legal authority if opposing party fails to
(4) In ex-parte proceeding, disclose all material facts
(5) Take remedial measures if lawyer knows client intends to engage in fraudulent or criminal activity
106
5 requirements - Duty of Decorum to the Court
A lawyer has a duty to uphold decorum in the court, and behave professionally and appropriately at all times. They should act in a way that builds confidence with the legal profession.
(1) Do not attempt to influence judge, jurors, or officials
(2) Do not communicate ex parte with judge during proceedings
(3) Do not disrupt proceedings
(4) Do not communicate with jurors after discharge if they don't want to communicate
(5) Do not file frivolous claims
Cross over with malicious prosecution tort
107
Duty of Fairness to Opposing Counsel - 7 requirements
(1) Do not obstruct/conceal evidence
(2) Do not falsify evidence or assist in perjury
(3) Promptly notify if materials inadvertently sent. In CA, must stop reading
(4) Do know knowingly disobey court rues
(5) Do not allude to matter not supported by admissible evidence
(6) No threats to gain advantage
(7) Do not communicate with party you know is represented without counsel consent
108
3 requirements when dealing with a party or a witness who is NOT represented
(1) Must not imply disinterested;
(2) Must correct any misunderstanding's about lawyer's role; AND
(3) Must not give legal advice (other than encourage to get lawyer)
109
Rule for attorney acting as third party neutral
Must clarify that his role is a non-attorney role
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5 duties of prosecutors
(1) Must have PC
(2) Respect right to counsel
(3) Timely disclose exculpatory information
(4) No public statements that materially prejudice D
(5) Disclose new material info following conviction
111
Rule for paying witnesses
An attorney may pay a witness for
- reasonable expenses
- loss of time
- expert fees
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When may an attorney advise someone to withhold information from another?
(1) Client, client relative, agent; AND
(2) Person's interests won't be harmed.
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rule on expediting cases under ABA and then under CA
In ABA, an attorney has a duty to expedite cases
Under the CA, the attorney must not delay cases with the purpose of harassing the other side for personal gain
114
Rule for attorney being a witness in a trial and 3 exceptions with split on last one
An attorney must not represent a client where the attorney will have to testify unless:
(1) Uncontested issue
(2) About hours or fees
(3) ABA, withdrawal would cause significant hardship. In CA, OK to act in dual role with client's informed consent
115
rule for when attorney is speaking at legislative event
An attorney may present evidence on a client's behalf at a legislative proceeding but must disclose she is acting in a representative capacity (need not identify the client)
116
rule for making statements about a judge or official or for either running for office
Lawyer must not make false or reckless statements about their qualifications or their integrity
CA does not care about legal officers, just judicial
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rule for what an attorney and trial publicity
Lawyer must not make false statements or statements that could materially prejudice the D.
The lawyer may disclose
(1) information from public records
(2) the claim or defense
(3) that investigation in process
(4) make requests for info
(5) make warnings of danger
(6) give status of the accused in a criminal case
118
what 4 things must a lawyer not publicly disclose?
(1) Character, credibility, reputation, or criminal record of accused
(2) Possible guilty plea or confession
(3) Opinion as to guilt or innocence
(4) Info lawyer reasonably knows likely to be inadmissible
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