Professional Responsibility - Bar Flashcards
What are the 3 ways to create an attorney client relationship?
(1) Expressly
(2) Implied through conduct
(3) Appointment by a court
What are the 4 groups/areas to which lawyers have duties?
(1) Duty to the Client
(2) Duties to the Profession
(3) Duties to Opposing Counsel (or third parties)
(4) Duties to the Court
Name duties under the duty to the client
Name duties under duties to the profession
Name duties to opposing counsel
Name duties to third parties
Name duties to the court
Six duties to mention on every essay
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)
For fee agreement, what 4 things to look for?
- Whether fee reasonable
- Whether fee must be in writing
- If contingency, whether type of case ok
- If contingency, whether required information therein is ok
Define rule for excessive fees under both aba and ca
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.
What is the general writing requirement rule under both aba and ca
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
What are the 2 types of matters in both the ABA and CA that cannot be subject to contingency?
(1) Criminal cases
(2) Domestic relations cases except for those involving collecting a post-judgment balance
What are the 3 requirements that must be in any contingency agreement under both the aba and ca, and 2 additional requirements for CA?
(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
In a contingency case where the lawyer is discharged, how is his payment treated?
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.
What is the rule for double billing in the aba?
Under the ABA, double billing is not allowed.
What is the rule for double billing in ca?
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.
When is fee splitting among LAWYERS acceptable in the ABA?
(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.
When is fee splitting among LAWYERS acceptable in CA?
(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.
When is the general rule and four exceptions for fee splitting among NON LAWYERS under the aba and ca?
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)
Under both the ABA and CA, when are reciprocal referral agreements allowed?
(1) Not exclusive; AND
(2) Client informed.
What is the rule for referral gifts under the ABA?
Under the ABA, referral gifts are prohibited unless they are a nominal, token gift.
What is the rule for referral gifts under CA?
Under CA, referral gifts are permitted so long as the gift is not given in consideration that a referral would be forthcoming.
What is the rule for the Duty to Safeguard Property (funds)?
The attorney must keep client funds in a client trust account and withdraw the funds as they are earned or expenses are incurred.
What is the rule for the Duty to Safeguard Property (funds) as it relates to flat fees, in CA?
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.
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.
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.
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.
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
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.
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.
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
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
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.
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
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.
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
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.
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
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
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
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.
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
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.
what are 2 types of privilege
1 - absolute
2 - qualified
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)
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.
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
