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Josh's California Cards > Professional Responsibility Essay Cards > Flashcards

Professional Responsibility Essay Cards Flashcards

1
Q

Duty of Loyalty

A
  1. A lawyer owes her client a duty of loyalty and must avoid conflicts of interest.
  2. A conflict of interest exists when there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or by the lawyer’s duty to another.
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2
Q

How to Deal With a Conflict

A

Lawyer may undertake a conflict representation where:

  1. Lawyer reasonably believes that she can competently and diligently represent each affected client despite the conflict; and
  2. Each affected client gives informed consent, confirmed in writing.

FURTHER (TYPE THIS OUT ON EXAM), it may not: (i) be prohibited by law; or (ii) involve the assertion of a claim by one client against another client who is represented by the lawyer in the same proceeding.

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3
Q

Accepting Compensation from Third Parties

A

A lawyer must not accept compensation for representing a client from someone other than client unless:

  1. The client gives informed consent in writing (writing is a CA requirement);
  2. There is no interference with the lawyer’s independent professional judgment or the L/c relationship.
  3. Information relating to the representation remains confidential.
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4
Q

Is an Oral Fee Agreement Proper?

A

California generally requires written fee agreements where the amount will exceed $1,000. The exceptions are:

  1. Where the client does not want it and says so in writing;
  2. Where the client is a corporation;
  3. Where the legal services are the same kind of services that the client has previously received and paid for;
  4. The lawyer is acting in an emergency; or
  5. Impractical for other reasons.
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5
Q

Duty of Competence

A

A lawyer owes their client a duty to handle their representation with competence. Competence refers to the knowledge and skill required to carry out the representation. This includes the physical and emotional capabilities of the client.

In California, a lawyer is subject to discipline where they provide the representation:

  1. Intentionally,
  2. Recklessly;
  3. With gross negligence; or
  4. Repeatedly fails to perform the legal services with competence.
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6
Q

California: Personal Relationship

A

In California where an attorney has a personal, professional, financial, or legal relationship with a party or witness in the client’s matter the lawyer must provide a written disclosure to the client even if there is no significant risk that the relationship would be materially impaired.

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7
Q

Scope of Representation

A

A lawyer may counsel and assist a client to make a good faith effort to determine the validity, scope, meaning, or application of law.

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8
Q

Failure to Report

A

ABA: Lawyer who knows of a violation that raises a SUBSTANTIAL question as to the lawyer’s honesty, trustworthiness, or fitness must report.

CA: No such rule.

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9
Q

Financial Assistance to Client

A

ABA Rules prohibit a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that:

(i) a lawyer may advance court costs and expenses, repayment may be contingent on outcome;
(ii) a lawyer representing indigent client may pay court costs and expenses of litigation on behalf of the client; and
(iii) lawyer representing a client pro bono may provide modest gifts to the client for basic living expenses.

The relevant difference in CA is that it provides that a lawyer may lend the client money for ANY purpose if the client gives him a WRITTEN promise to repay.

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10
Q

Duty to Inform/Keep Informed

A
  1. A lawyer must keep a client reasonable informed about the status of a matter.
  2. The CA rules also specifically provide that a lawyer must obtain a client’s consent before agreeing to pay the client’s expenses to third persons from funds to be collected for the client.
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11
Q

Contingent Fee Agreement

A

Must indicate:

  1. Litigation and other expenses to be deducted from recovery; and
  2. Whether such expenses are to be deducted before OR after the contingent fee is calculated.
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12
Q

Settlement Offers

A
  1. The client has the ultimate authority as to whether to accept a settlement offer.
  2. In the course of representing the client, the lawyer must act in the client’s best interest.
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13
Q

Sexual Relationship With Client

A
  1. Lawyer has a duty not to engage in a sexual relationship with a client, unless the relationship began before the lawyer-client relationship was established.
  2. California has an exception where the lawyer and client become married/registered domestic partnership.
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14
Q

Ethical/Illegal Counseling

A

A lawyer has a duty not to counsel or assist a client in conduct that the lawyer KNOWS is criminal or fraudulent.

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15
Q

Handling of Settlement Funds

A
  1. Upon receiving funds, securities, or other property in which a client or third person has an interest, lawyer must then notify the client or third person.
  2. Lawyer must hold separate the disputed portion of the funds or other property until the third person’s claim is resolved.
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16
Q

Withholding Services

A
  1. Lawyer has a duty to act on behalf of a client with reasonable diligence (and/or best interest);
  2. A lawyer may withdraw from the case if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning.
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17
Q

Reasonable Fee

A

ABA: Attorney’s fee must be reasonable. CA: Cannot be unconscionable.

Reasonableness: (i) time and labor required; (ii) the novelty and difficulty of the questions involved; (iii) the skill required to perform the legal service; and (iv) the experience, ability, and reputation of the attorney.

18
Q

Conflict of Interest: Former Client

A
  1. A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or substantially the related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.
  2. Regardless, may not reveal former client’s information OR use it to the former client’s disadvantage.
19
Q

Duty to Supervise

A

A lawyer having managerial or direct supervisory authority over a nonlawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

20
Q

Assisting in Unauthorized Practice of Law

A
  1. May not assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law.
  2. California allows the employment of disbarred and otherwise ineligible lawyers. With notice to the state bar and affected clients, such person may engage in certain research, drafting, and clerical activities. Must not engage in any activity that constitutes the practice of law.
21
Q

Fee in Writing/Avoid Fee Misunderstandings

A

Must have a written fee agreement where fee will likely exceed $1,000. Exceptions:

  1. Client is a corporation;
  2. Client declines in writing to have a written agreement;
  3. Same as previous legal services
  4. Emergency
  5. Impractical for other reasons.
22
Q

Duty of Confidentiality: Financial Loss Exception

A

ABA:

  1. Lawyer must not reveal information relating to the representation of a client, even after termination of the relationship.
  2. The relevant exception to this duty under the ABA Rules is that a lawyer may disclose information relating to the representation of a client to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person, if the client is using or has used the lawyers services to commit a crime or fraud.

CA: NO FINANCIAL LOSS EXCEPTION

23
Q

Reporting Corporate Violations

A

A lawyer who represents an organization must act in the best interests of the organization. If the lawyer:

  1. Learns facts that would cause a reasonable lawyer to conclude that someone associated with the organization is engaged in an action that is a violation of a legal obligation to the organization; and
  2. If the violation is likely to result in substantial injury to the organization; then
  3. The lawyer must proceed as is reasonably necessary in the best interest of the organization.

Here is what you do:

ABA: If the highest authority of the org fails to take timely, appropriate action, ABA permits outside permitting to the extent the lawyer thinks it is reasonably necessary to prevent substantial injury to the organization.

CA: Prohibit outside reporting unless an exception to the duty of confidentiality.

24
Q

Lawyer Advertising

A
  1. Lawyer may advertise if it is not false or misleading.
  2. May state their fields of law they practice in.
  3. May not claim to be a certified specialist in a certain field unless she has been certified by an organization approved by the state bar or accredited by the ABA.
25
Q

Solicitation

A

What constitutes solicitation:

  1. A solicitation is a communication that is initiated by the lawyer and directed to a person known to need legal services in a matter, and that offers to provide legal services in that manner.
  2. A lawyer generally may not solicit clients where the motive for doing so is the lawyer’s pecuniary gain.
  3. Cannot have an agent do what the lawyer cannot do.
26
Q

Payment for Recommendation/Referral Fee

A
  1. A lawyer generally must not give anything of value to a person for recommending the lawyer’s services.
  2. A lawyer may give a gift or gratuity as a token of appreciation to a person who recommended the lawyer, but the gift or gratuity must not be offered or given in consideration of an understanding that such gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.
27
Q

Communication With a Represented Person

A
  1. In a rep of a client, a lawyer must not communicate about the matter with a person she knows to be represented by counsel IN THE MATTER, unless;
  2. The other counsel has granted permission; or
  3. Authorized by law or court order to make the communication.
28
Q

Communication With Represented Party: Party is an Organization

A

ABA: Must obtain attorney consent before communicating with the following:

  1. One who supervises or regularly consults with the organization’s lawyer;
  2. One who has the authority to obligate the organization with respect to the matter; and
  3. One whose conduct in the matter may be imputed to the organization.

CA: Doesn’t have 1 and 2, but prohibits communications with any current officer, director, partner, or managing agent of the organization.

29
Q

Conflict of Interest for Former Government Employees

A
  1. Must not represent in connection with a matter that the lawyer personally and substantially participated in as a government officer or employee, unless consent is given;
  2. Matter must involve specific facts and parties.

Regulations generally aren’t matters.

30
Q

Imputation of Conflicts

A

If a former lawyer is disqualified from a matter, the other lawyers in the firm which the disqualified lawyer now works may handle the matter if all of the following conditions are met:

  1. The disqualified lawyer is screened from any participation in the matter;
  2. The dq’d lawyer does not share any part of the fee earned; and
  3. The appropriate government agency (or client) is promptly notified of the screening arrangement.
31
Q

Acting Competently to Preserve Confidentiality

A

As part of the duty of confidentiality, the ABA specifically requires an attorney to act competently to preserve the confidentiality, i.e., make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.

32
Q

Duty to Train Employees

A

A Lawyer having direct supervisory authority over a non-lawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.

33
Q

Publicity

A
  1. A lawyer should avoid making extrajudicial statements that a reasonable person should expect to be publicly disseminated if they knew or should know the statements will have a substantial likelihood of materially prejudicing the proceeding.
  2. A Lawyer is permitted to state the offense/defense involved in case and the identity of the persons involved.
34
Q

Statements about Judicial/Legal Officers and Candidates

A
  1. Must not make a statement that the lawyer knows is false, or with reckless disregard as to its truth or falsity, about the qualifications or integrity of a judge, hearing officer, public legal official, or about a candidate for judicial or legal office.

2.

35
Q

Duty of Fairness to Opposing Party and Counsel: Evidence

A
  1. Prohibit a Lawyer from obstructing access to evidence; either by altering, destroying, or concealing material having potential evidentiary value.
  2. Unethical to ask OTHERS to do it for you, this is a separate violation.
36
Q

Advising a Witness to Avoid the Other Side

A

Generally cannot advise a person to refrain from voluntarily giving relevant information to another party, except:

  1. Where the person is a client, or a relative, employee, or agent of a client, and the lawyer reasonably believes the person’s interest will not be adversely affected by refraining from giving such information.
37
Q

Imputation: California

A

Under the CA RPC, 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.

38
Q

Duty of Care: Diligence

A

A lawyer has a duty to pursue a case with the care and diligence that one would bring to their own personal matters. This includes the duty to:

(1) research facts (including facts alleged by your client);
(2) investigate matters; and
(3) put in the time needed to present an adequate representation of their
client’s case.

39
Q

Scope of Representation: Client Power

A

A lawyer has a duty to pursue all legally available avenues in representing the client and defending their case. The client has authority to decide whether or not to accept a settlement, whether or not to take a plea deal in a case, etc. The client controls the objectives of the case, while the lawyer decides the tactics and the strategic moves of the case.

40
Q

Permissive Withdrawal

A

Under the ABA, a lawyer may withdraw if they reasonably believe the representation will result in an ethical violation, if the client has already used their services to commit a crime or fraud, if the client has failed to substantially fulfill an obligation to the lawyer, such as pay their fee, if the client is insisting on pursuing a matter in a way the lawyer finds morally repugnant or fundamentally disagrees with, or if they can do so without material adverse effect on the client, or any other good cause.

California is similar except it does NOT allow withdrawal solely because the lawyer fundamentally disagrees with the way the client wants to pursue the case, or even if they can do so without causing material adverse effect on the client. However, it does allow the lawyer to withdraw for good cause.

41
Q

Mandatory Withdrawal

A

One only needs to mandatorily withdraw from representation, in accordance with both ABA and CA rules, if the representation will result in a violation of the ABA or CA rules or statute, if the lawyer’s physical or mental ability will impair the representation, or if the lawyer is discharged. In addition, in CA, a lawyer must withdraw if they know the client does not have probable cause for their case and it is solely malicious.

Josh's California Cards (13 decks)

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