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Bar Exam Cards > Professional Responsibility Cards > Flashcards

Professional Responsibility Cards Flashcards

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1
Q

Duty of Confidentiality

A

A lawyer must not reveal information relating to the representation of a client, unless the client consents. Also, the lawyer must take reasonable measures to prevent unauthorized access to client info. Under CA, a lawyer must disclose confidential information if to prevent a criminal act that would lead to death or substantial bodily harm after making an attempt to dissuade the client from moving forward.

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2
Q

Items of a Crime

A

If an attorney comes into possession of the fruits of a crime, that informaiton cannot be protected by the duty of confidentiality. It must be turned over to the authorities. However, an attorney is allowed to hold an item of evidence for a reasonable period of time in order to inspect it to build the case.

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3
Q

Duty of Competence

A

Under ABA, an attorney owes a duty to their client to use their skill, knowledge, thoroughness, and preparation solely for their client’s benefit. Under CA, a lawyer must not intentionally, recklessly, or with gross negligence fail in performing their duties competently.

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4
Q

Mandatory Withdrawal

A

An attorney is required to withdraw when (1)they are terminated; (2) when their representation of the client violates the law or ethics; (3) when a mental or physical condition prevents the attorney from undertaking effective representation; and (4) where the client’s course of conduct requires the attorney to participate or assist in crime or fraud.

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5
Q

Permissive Withdrawal

A

Under both ABA and CA, an attorney can withdraw if the client insists on a course of action the lawyer disagrees with or considers repugnant, if the client has misused the client’s services in the past, or if the client has not performed their duties like paying fees. Under ABA, an attorney is permitted to withdraw if they can do so without prejudicing their client.

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6
Q

Duty to Communicate

A

Under ABA, a lawyer has a duty to communicate with their client and keep them reasonably informed on key issues and steps during representation. Under CA, a lawyer must keep the client updated on significant developments which include written settlement offers and plea deals.

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7
Q

Duty of Loyalty

A

Under both ABA and CA, an attorney must act in the best interest of the client. If a lawyer believes they are unable to properly represent the client due to some material limitation, they must withdraw unless they reasonably believe they can represent competently. A lawyer must also not represent multiple clients to the same or substantially similar suits unless informed written consent is acquired. More narrowly under CA, the consent and disclosure must be in writing.

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8
Q

Duty to disclose Prior Relationships

A

Following the Duty of Loyalty, if an attorney had a close personal relationship with someone from opposing counsel, the attorney must disclose that potential conflict to the client. Just like with the Duty of Loyalty, the attorney must withdraw if they do not believe they can adequately represent their client due to the limitation. Under the ABA, the attorney must receive informed consent. Under CA, the attorney must provide consent and disclosure in writing.

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9
Q

Duty of Candor

A

An attorney owes a duty of candor to the tribunal and their opponent. A lawyer must not knowingly make a false statement to the court or fail to correct a false statement previously made.

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10
Q

Duty to Inform the Court

A

A lawyer must not assist in perjured testimony or false evidence. A lawyer must disclose to the court when they discover that perjured testimony/evidence is attempting to be admitted.

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11
Q

Duty to Supervise

A

Under both ABA and CA, a lawyer has a duty to adequately supervise the staff that they manage or exercise control over.

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12
Q

Duty of Diligence

A

Under both ABA and CA, a lawyer has a duty of due diligence. A lawyer must timely manage and handle cases and documents to provide diligent service to the client. More narrowly in CA, a lawyer is obligated to not knowingly, recklessly, or intentionally fail to act with diligence.

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13
Q

Duty of Fairness

A

Under both ABA and CA, a lawyer owes a duty of fairness to opposing counsel. When a lawyer receives information they know or reasonably should know was sent by mistake, they must take certain steps to mitigate harm to opposing counsel. Under ABA, the lawyer must notify opposing counsel as soon as possible about the information. Under CA, the lawyer must notify opposing counsel and only read as much as necessary to determine the information was inadvertently sent.

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14
Q

Referral Agreement

A

Under ABA and CA, a lawyer may refer a client to another lawyer with he informed consent of the client and as long as the referral agreement is non-exclusive.

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15
Q

Referral Fee

A

Under ABA, referral fees are prohibited. Under CA, they are permitted as long as the client gives informed consent and the total fees are not increased due to the referral agreement.

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16
Q

Referral Fee with Non-Attorney

A

Under ABA and CA, a lawyer may not arrange referral agreements with non-lawyers for a fee unless it is a qualified reciprocal referral service.

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17
Q

Gifts

A

Under ABA, lawyers are not permitted to solicit substantial gifts. Under CA, gifts for past referrals are permitted as long as there is an understanding that the gift is not a consideration for future referrals and the gift is “fair”

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18
Q

Solicitation

A

Under ABA, solicitation, whether personally or through an agent, is prohibited. Solicitation is direct communication with a person in order to gain representation for a financial gain. Under CA, direct solicitations in hospitals and medical facilities are presumed unethical.

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19
Q

Partnership with non-lawyer

A

Under both ABA and CA, a partnership with a non-lawyer is strictly prohibited to avoid any improper influence on a lawyer.

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20
Q

Fee-sharing with non-lawyers

A

Under both ABA and CA, sharing fees with non-lawyers is prohibited, unless it is for employees within a firm as part of a compensation plan.

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21
Q

Sexual Relations with a Client

A

Under ABA, sexual relations with a client is prohibited, unless they pre-date the lawyer-client relationship. Under CA, a lawyer is prohibited from coercing or otherwise unduly influencing a client into sexual relations.

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22
Q

Contingency Fee Agreement

A

Are agreements whereby a lawyer recovers a percentage fee of the recovered amount. Must be in writing and clearly indicate how the fee was calculated. However, contingency fees are not allowed in domestic relations or criminal cases for policy reasons.

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23
Q

Threats with administrative action

A

Under CA, threatening with administrative action or any other civil action or prosecution to gain advantage in a current litigation is prohibited. ABA has no such rule.

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24
Q

Reporting Violations of Ethical Rules

A

Under ABA, a lawyer must report violations of the ethical rules. Under CA, there is no reporting requirement but the lawyer must report themselves if they committed professional misconduct.

25
Q

Duty to Avoid Frivolous Claims

A

Under the ABA rules, an attorney ought not press a claim or argument unless there is a good faith basis in the law in support of the claim or argument. Under CA, an attorney must not press a claim when they lack probable cause for the claim and has a purpose of harassment for pressing the claim.

26
Q

Scope of Representation

A

Under both ABA and CA, an attorney must follow the bounds of the scope of representation. Some issues are solely up to the discretion of the client, including whether to accept a settlement offer, whether to testify, and whether to waive a jury trial right. However, the attorney has control over the means of representation, subject to a duty to consult with the client and communicate with the client about the means of representation.

27
Q

Steps After Withdrawal

A

After withdrawing from representation, an attorney must take steps under both ABA and CA. An attorney must return any unearned fees, unless retainer or referral under CA. An attorney must return all of the client’s personal property and papers. An attorney must mitigate any potential harm to the client. An attorney must also give the client proper notice and reasonable amount of time to find new counsel.

28
Q

Organizational Client

A

When a lawyer is hired to represent a corporation or organization, the lawyers fiduciary duties are to the organization and not to the individual members, directors, or officers. A lawyer has a duty to act on the best interests of the organization and can, therefore, not engage in conduct which would benefit any individual or group of individuals at the expense of the organization.

29
Q

Duty to Report to Client

A

When a lawyer represents an organization, and learns of conduct made by an individual in the corp which materially harms the org in terms of financial harm or even reputation, the lawyer has a duty to report. Under ABA, the lawyer has to first report the individual’s conduct to a higher authority in the company, but if nothing is done, the lawyer may seek authority outside the corporation. Under CA, a lawyer has a duty to report up the chain to the board of directors, but if nothing is done, the lawyer may only withdraw.

30
Q

Fee Agreement

A

Under ABA, a lawyer is encouraged but not required to put agreements in writing, unless if it is contingency then it must be in writing. Additionally, if a client is an organization, repeated client, or an emergency, the lawyer does not have to write up an agreement. Under CA, if the amount is over $1000 then the agreement must be in writing.

31
Q

Associate Attorney following Supervising Attorneys Instructions

A

Under both ABA and CA, an attorney that is working under the supervision of a partner or other attorney has a duty to abide by the instructions that the supervising attorney gives, while still maintaining her duty to maintain independent professional judgement and to avoid committing a clear ethical violation.

32
Q

Moving to New Firm

A

Under both ABA and CA, where an attorney has worked on the same or substantially similar matter for one client, and then moves to a new firm that is working on the same or substantially similar matter for the adverse party of that representation, a conflict of interest occurs. Such conflict is imputed onto other attorneys in the firm, and the firm must not take on the case, regardless of who works on it, unless the former client gives informed written consent, or the new attorney is screened.

33
Q

Conflicts with Former Clients

A

An attorney owes continuing duties of both loyalty and confidentiality to past clients, even after the representation of those clients has ceased. The duty to past clients means that an attorney may not reveal information relating to the representation of that client, regardless of the source, unless authorized by the express written consent of the client. This also includes not participating in actions against the client unless there has been informed consent under ABA, and informed written consent under CA.

34
Q

CA Exception for Personal and Substantial Work

A

Under CA, a new lawyer’s conflict is imputed into the entire firm, and the entire firm may not take on or continue a case, even with appropriate screening procedures or informed written consent, if the new and conflicted attorney worked substantially and personally on the same matter for the other client.

35
Q

Disbarred Attorney

A

A disbarred attorney must resign from their law firm and cannot associate with that firm as an attorney.

36
Q

Employing Disbarred Attorney

A

In CA, a disbarred attorney can be hired to work as an employee but may only work at a limited capacity and contact with clients must be minimal as to not confuse clients. The CA State Bar must also be informed as to the disbarred attorney being hired by an attorney. The ABA is silent as to this rule.

37
Q

Communications with Opposing Party’s Client

A

A lawyer cannot have contact with an opposing party that the lawyer knows is represented by counsel, unless opposing counsel consents or is present.

38
Q

Personal Conflicts

A

Following the Duty of Loyalty, an attorney must disclose that they have a personal connection with one of the clients in a dual representation and may have to withdraw if they are unable to zealously represent both clients. Under both ABA and CA, this requires informed consent in writing by all individuals.

39
Q

Excessive Fee’s

A

Under the ABA, a lawyer’s fee must be reasonable in light of the experience of the lawyer, time & preparation required, nature of the case, and the result achieved. More broadly under CA, the fee must not be unconscionable.

40
Q

Payments after Discharge

A

Generally, when a lawyer is discharged by a client they represent on, contingency or not, they may recover through quantum meruit for the work already done.

41
Q

Steps After Withdrawal

A

After withdrawing from representation, an attorney must take steps under both ABA and CA. An attorney must return any unearned fees, unless retainer or referral under CA. An attorney must return all of the client’s personal property and papers. An attorney must mitigate any potential harm to the client. An attorney must also give the client proper notice and reasonable amount of time to find new counsel.

42
Q

Conflicts with Former Clients

A

An attorney owes continuing duties of both loyalty and confidentiality to past clients, even after the representation of those clients has ceased. The duty to past clients means that an attorney may not reveal information relating to the representation of that client, regardless of the source, unless authorized by the express written consent of the client. This also includes not participating in actions against the client unless there has been informed consent under ABA, and informed written consent under CA.

43
Q

Attorney as Witness

A

Under ABA, an attorney is not permitted to act as a witness in a case which they are litigating unless their testimony (1) relates to a non-disputed issue, or (2) the attorney is so critical to the case, that they cannot be removed as counsel

44
Q

Duty to Safeguard

A

An attorney owes a duty to the client to safeguard possessions of the client, including money given as a retainer and any possessions or evidence entrusted to the attorney.

45
Q

Personal Relationship Conflicts

A

Following the Duty of Loyalty, an attorney must disclose that they have a personal connection with one of the clients in a dual representation and may have to withdraw if they are unable to zealously represent both clients. Under both ABA and CA, this requires informed consent in writing by all individuals.

46
Q

Attorney-Client Conflicts

A

A lawyer may breach his duty of loyalty by representing a client with interests adverse to his own. This often arises in litigation when the attorney is handling is adverse to one of his personal interests.

47
Q

Limiting Liability

A

Under the ABA, a lawyer may not limit a client’s right to seek disciplinary action or to participate in an investigation. A lawyer may limit liability malpractice liability, so long as the client is represented by independent counsel. Under CA, a lawyer must not place any limitations on malpractice liability.

48
Q

Duty to Distribute Funds

A

A lawyer has a duty to notify the client and distribute funds promptly when funds have been received on the client’s behalf. The lawyer must retain whatever amount is in dispute in the client trust account until the matter is resolved.

49
Q

Business Deal with Client

A

When entering a business deal with the client, the deal must meet four specified criteria. First, the deal must be on objectively fair terms to the client. Second, all terms of the deal must be clearly and thoroughly disclosed in writing to the client. Third, the client must be advised that outside counsel is recommended. Fourth, the client must provide written consent.

50
Q

Statements to the Public

A

An attorney may not make extrajudicial statements that would inhibit a defendant’s right to a fair trial. An attorney cannot make statements about a trial that would prevent the selection of an impartial jury or prejudice the defendant.

51
Q

Malicious Prosecution

A

A prosecuting attorney has a duty to not bring malicious actions and may only bring charges supported by probable cause. If a prosecutor initially has probable cause to bring charges but later finds out there is no probable cause then the charges against the D must be dropped.

52
Q

Disclosure of Evidence

A

An attorney has a duty to turn over any evidence that is helpful to the defense outside of discovery requests.

53
Q

Extrajudicial Statements to Judge

A

An attorney may not make extrajudicial statements to the presiding judge regarding the case matter without the presence of other counsel or their knowledge.

54
Q

Fee-sharing with lawyers

A

Under ABA, a lawyer may split fees with another attorney if it is in proportion to the services rendered, the total fee is reasonable, the client gives informed consent, and the total fee is not increased. In CA, an attorney may split fees with a non-lawyer if the total fee is not unconscionable and the client gives written consent.

55
Q

Communicating with unrepresented person

A

A lawyer, if meeting with a person who is not represented by an attorney, must not make any indications that he represents that person’s interest or is impartial.

56
Q

Influencing a Witness

A

A lawyer may not pay a witness for their testimony. If it is an expert witness, the expert witness’s expenses for travel and time away from work may be paid.

57
Q

Advertisements

A

Under ABA, an attorney cannot engage in real-time phone or live contact with prospective clients with whom he has no prior personal or business relationship. Any advertising must be labeled attorney advertising, it cannot make any misrepresentations or be misleading. More narrowly under CA, making any guarantees or warranties as to results is considered presumptively improper.

58
Q

Ex Parte Contact with Judge

A

A lawyer’s duty of fair play to her opposing counsel requires that she not engage in any ex parte contact with a judge in order to influence the outcome of a proceeding,

Bar Exam Cards (9 decks)

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