Professional Responsibility [Highly Tested Rules]

Question 1

What are the ways a lawyer-client relationship can be formed?

Answer 1

A lawyer-client relationship may be formed:
1. by express oral or written agreement between the lawyer and client;
2. by implied agreement; OR
3. by a court’s appointment of counsel

Question 2

How is a lawyer-client relationship formed by implied agreement?

Answer 2

A lawyer-client relationship is formed by implied agreement when:
1. a prospective client seeks legal advice or services from a lawyer in their professional capacity;
2. the lawyer fails to make clear that he does not want to undertake the representation; and
3. the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the legal services

Question 3

Which descisions are the client’s to make, and which decisions are the lawyer’s?

Answer 3

A lawyer must abide by the client’s substantive decisions after the lawyer has consulted with the client, and the lawyer is responsible for employing the appropriate legal strategy

The client has the final decision as to:
1. whether to accept a settlement offer;
2. what plea to enter;
3. whether to waive a jury trial in a criminal case; AND
4. whether the client will testify in a criminal case

Question 4

When may a lawyer limit the scope of a representation?

Answer 4

A lawyer may limit the scope of the representation if:
1. the limitation is reasonable under the circumstances; AND
2. the client gives informed consent

Question 5

What are the rules regarding advising or assisting a client in criminal or fraudulent conduct?

Answer 5

ABA: A lawyer must NOT counsel or assist the client in illegal or fraudulent conduct
* The lawyer may advise the client of the legal consequences of a proposed course of action, but if the client insists on pursuing an illegal or unethical course of conduct, the lawyer must withdraw

CA: The California rule also prohibits a lawyer from assisting a client in conduct that violates a court rule or ruling
* The commentary also provides that, if California law conflicts with federal or tribal law (e.g., with respect to marijuana laws), the lawyer must inform the client about the related federal or tribal law or policy

Question 6

To whom does a lawyer owe a duty when the client is an organization?

Answer 6

When a lawyer’s client is an organization, the lawyer represents and owes a duty to the organization, not the people associated with the organization, and the lawyer must explain this whenever the organization’s interests are adverse to those of the individuals at the organization with whom the lawyer is dealing

Question 7

What must a lawyer do to protect an organizational client’s interests?

Answer 7

If a lawyer learns that a person associated with the organization has acted, or is about to act, in violation of a duty to the organization or the law in a way that might be imputed to the organization, the lawyer must proceed as reasonably necessary to protect the organization’s interests, which ordinarily involves reporting the matter to a higher authority in the organization

Outside Reporting:
If the highest authority in the organization fails to act, the lawyer may (but is not required to) report the information to appropriate persons outside the organization to the extent that reporting is necessary to prevent substantial injury to the organization
* CA: The CA Rules do NOT authorize outside reporting UNLESS an exception to the duty of confidentiality applies; if the highest authority in the organization fails to take action, the lawyer may withdraw

Question 8

When MUST a lawyer withdraw from (or decline to accept) a representation?

Answer 8

A lawyer MUST decline to take on a representation, or MUST withdraw from representation, if:
1. the representation will result in a violation of the rules of professional conduct or other law;
2. the lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client;
3. the lawyer is discharged by the client; OR
4. CA: the client is bringing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person

Question 9

When MAY a lawyer withdraw from a representation under the ABA Rules?

Answer 9

Under the ABA Rules, a lawyer MAY withdraw from representation if:
1. the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
2. the client has already used the lawyer’s services to perpetrate a crime or fraud;
3. the client fails substantially to fulfill an obligation to the lawyer (e.g., paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled;
4. the representation has been rendered unreasonably difficult by the client;
5. the client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
6. the representation will result in an unreasonable financial burden on the lawyer; OR
7. withdrawal can be accomplished without material adverse effect on the client’s interests

EXCEPTION: When court ordered to do so, a lawyer must continue representation notwithstanding good cause for terminating the representation

Question 10

When MAY a lawyer withdraw from a representation under the CA Rules?

Answer 10

Under the CA Rules, a lawyer MAY withdraw from representation if:
1. the client persists in a criminal or fraudulent course of action involving the lawyer’s services;
2. the client has already used the lawyer’s services to perpetrate a crime or fraud;
3. the client fails substantially to fulfill an obligation to the lawyer (e.g., paying bills) and has been given reasonable warning that the lawyer will withdraw if the obligation is not fulfilled;
4. the representation has been rendered unreasonably difficult by the client;
5. the lawyer is unable to work with co-counsel, and withdrawing would serve the client’s interests;
6. the lawyer’s mental or physical condition makes it “difficult” to continue representing the client (but not severe enough to require mandatory withdrawal); OR
7. the client knowingly and freely assents to termination of the representation

EXCEPTION: When court ordered to do so, a lawyer must continue representation notwithstanding good cause for terminating the representation

Question 11

What must a lawyer do upon termination of a representation?

Answer 11

When terminating representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as:
1. giving reasonable notice to the client;
2. affording the client time to retain other counsel;
3. surrendering papers and property to which the client is entitled; AND
4. refunding any unearned advance payments

Question 12

What does the duty of competence require?

Answer 12

A lawyer owes a duty of competence to their client, which requires the lawyer to apply the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation, including by keeping abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology
* CA: The CA Rules also require the lawyer to apply the mental, emotional, and physical ability reasonably necessary for the performance of legal services
* EXCEPTION: In an emergency, a lawyer may give advice or assistance to a client in a matter in which the lawyer would ordinarily lack competence, but such assistance should be limited to that reasonable necessary under the circumstances

Question 13

What does the duty of competence require when a lawyer lacks knowledge or experience?

Answer 13

If a lawyer lacks knowledge or experience in a particular field, the lawyer must NOT undertake the representation UNLESS:
1. the lawyer acquires sufficient knowledge and skill through necessary study before performance is required; OR
2. the lawyer associates or consults with a lawyer of established competence in the field

CA: The CA Rules provide that a lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence
* This means that a California lawyer generally is NOT subject to discipline for a minor, isolated breach of the duty of competence

Question 14

What does the duty of diligence require?

Answer 14

A lawyer must act with reasonable diligence and promptness in representing a client, which includes:
1. controlling their workload so that each matter can be handled competently; AND
2. acting with commitment and dedication to the client’s interests

CA: The CA Rules provide that a lawyer must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable diligence
* This means that a California lawyer generally is NOT subject to discipline for a minor, isolated breach of the duty of diligence

Question 15

What does the duty to communicate require?

Answer 15

The duty to communicate requires a lawyer to:
1. explain the matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation;
2. promptly inform the client of any decision or circumstance that requires the client’s informed consent;
3. reasonably consult with the client about legal strategy;
4. keep the client reasonably informed about the status of the matter, including all significant developments;
5. promptly comply with the client’s reasonable requests for information; AND
6. consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the client expects assistance not permitted by law or ethical rules

Question 16

What does the duty to communicate require with respect to plea bargains and settlement offers under the ABA Rules?

Answer 16

Under the ABA Rules, a lawyer must promptly inform the client of any settlement offer or proffered plea bargain unless the client has previously (1) indicated that the proposal will be acceptable or unacceptable or (2) authorized the lawyer to accept or reject the offer

Question 17

What does the duty to communicate require with respect to plea bargains and settlement offers under the CA Rules?

Answer 17

Under the CA Rules, a lawyer must ALWAYS promptly communicate the following to a client, regardless of the circumstances:
1. in a criminal case, all terms and conditions of a proposed plea bargain or other dispositive offer; AND
2. in all other matters, all amounts, terms and conditions of any written settlement offer
> NOTE: In accordance with the general duty to communicate, an oral settlement offer must be communicated to the client if it constitutes a significant development (which will almost always be the case)

Question 18

When may a lawyer withhold information from a client under the ABA Rules?

Answer 18

Under the ABA Rules, a lawyer may delay communicating information to a client if the client would be likely to react imprudently to an immediate communication

NOTE: The lawyer may only delay disclosure; the lawyer must eventually disclose the information

Question 19

When may a lawyer withhold information from a client under the CA Rules?

Answer 19

Under the CA Rules, a lawyer may delay communicating information to a client only if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others

NOTE: The lawyer may only delay disclosure; the lawyer must eventually disclose the information

Question 20

What do the CA Rules specifically require a lawyer to disclose to a client regarding professional liability insurance?

Answer 20

The CA Rules provide that:
* when a lawyer does NOT have professional liability insurance, they must inform the client in writing at the time of engagement
* if a lawyer loses their professional liability insurance during the representation, they must inform the client within 30 days

EXCEPTIONS: Disclosure is NOT required when:
1. the representation will not exceed 4 hours;
2. the lawyer is acting within their direct employment as a government lawyer or in-house counsel; OR
3. the lawyer is rendering legal services in an emergency

Question 21

What does the duty of confidentiality require?

Answer 21

A lawyer must NOT reveal any information relating to the representation of a client, regardless of the source of information, unless an exception applies
* The duty of confidentiality requires a lawyer to take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the client’s confidential information

Question 22

What is the scope and duration of the duty of confidentiality?

Answer 22

SCOPE:
The duty of confidentiality applies regardless of whether the client requested that it be kept “confidential” or whether its revelation might harm or embarrass the client; it applies regardless of the source of the information, and it prevents all types of disclosure

DURATION:
The duty of confidentiality applies to information gained during consultations with prospective clients, even if the lawyer is not hired, and it continues to apply after the lawyer-client relationship has terminated and even after the client has died

Question 23

What are the exceptions to the duty of confidentiality under the ABA Rules?

Answer 23

Under the ABA Rules, a lawyer may disclose confidential information:
1. if the client gives informed consent;
2. if the disclosure is impliedly authorized to carry out the representation;
3. to prevent reasonably certain death or substantial bodily harm;
4. to prevent the client from committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person (or to rectify or mitigate the financial loss if the crime or fraud has already been committed), and the client is using or has used the lawyer’s services in furtherance of the crime or fraud;
5. to collect a legal fee or defend the lawyer from some charge or claim of wrongdoing;
6. to obtain confidential legal ethics advice;
7. to detect or address conflicts of interest resulting from an organizational change (e.g., change of employment, merger, or purchase of a law practice); OR
8. to comply with a court order or other law

NOTE: Even where an exception applies, the lawyer may disclose a client’s confidential information only to the extent reasonably necessary to meet the exception

Question 24

What are the exceptions to the duty of confidentiality under the CA Rules?

Answer 24

Under the CA Rules, a lawyer may disclose confidential information:
1. if the client gives informed consent;
2. to prevent a future criminal act that is likely to result in death or substantial bodily harm; provided that, before disclosure, the lawyer must, if reasonable under the circumstances, (i) make a good faith effort to persuade the client not to commit or continue the criminal act or to pursue a course of conduct that will prevent the crime, and (ii) inform the client of the lawyer’s ability or decision to disclose the confidential information;
3. to collect a legal fee or defend the lawyer against some charge or claim of wrongdoing; OR
4. when compelled by court order or other law

NOTE: Even where an exception applies, the lawyer may disclose a client’s confidential information only to the extent reasonably necessary to meet the exeption

Question 25

What is the attorney-client privilege, and when does it terminate?

Answer 25

The attorney-client privilege allows a client to refuse to testify and prevent their lawyer from testifying before a court or other government tribunal about confidential communications between them or their respective agents that pertain to legal services
* The attorney-client privilege attaches to consultations with prospective clients and continues after the representation ends

CA: In California, the attorney-client privilege terminates after the client’s death when the client’s estate is settled and the personal representative is discharged

Question 26

What are the exceptions to the attorney-client privilege?

Answer 26

The attorney-client privilege does NOT apply:
1. where the client seeks the attorney’s services to enable or aid anyone to commit a future crime or fraud
2. to a communication that is relevant to an issue of breach (by either lawyer or client) of the duties arising out of the attorney-client relationship
3. where the client otherwise puts the legal services at issue in the case
4. in civil litigation between multiple persons who were formerly the joint clients of the lawyer
5. to a communication that is relevant to a dispute between persons claiming through the same deceased client
6. CA: when disclosure is necessary to prevent a CRIMINAL act that the lawyer reasonably believes is likely to result in substantial bodily injury or death to any person

Question 27

What does the duty of loyalty require?

Answer 27

A lawyer owes a duty of loyalty to his client and must avoid conflicts of interest

Question 28

What are the consequences of failing to avoid or properly address conflicts of interest?

Answer 28

A lawyer’s failure to avoid or properly address a conflict of interest can result in:
1. disqualification as counsel in a litigated matter;
2. professional disciplinary action; AND/OR
3. civil liability for legal malpractice

Question 29

What is imputed disqualification, and when does it not apply?

Answer 29

Generally, a lawyer’s disqualifying conflict of interest is imputed to his entire firm
* “Firm” means any group of lawyers who practice closely together

EXCEPTIONS:
An imputed disqualification can be waived with the informed consent of the affected client, and imputed disqualification does NOT apply:
1. when the conflict is uniquely personal to the disqualified lawyer AND would not materially limit the representation of the client by the other lawyers in his firm (e.g., a conflict based on the lawyer’s sexual relationship with a client); OR
2. when the conflict is based on certain situations involving the disqualified lawyer’s prior representation or employment, or the disqualified lawyer’s consultation with a prospective client AND:
(i) the disqualified lawyer is timely screened from the matter, meaning they do not work on the matter, discuss it with those who do, or have access to case files
(ii) the disqualified lawyer does not share in the fee from the matter (although receiving a general salary or partnership share is fine)
(iii) the affected client is given notice to ensure compliance
(iv) CA: if the disqualifying conflict is based on the disqualified lawyer’s relationship to a former firm’s client, the CA Rules also provide that the imputation will be cured only if the disqualified lawyer did not substantially participate in the same or substantially related matter giving rise to the conflict at such former firm

Question 30

When does a concurrent conflict exist?

Answer 30

As a general rule, a lawyer must NOT represent a client if a concurrent conflict exists

A concurrent conflict exists if
1. the client will be directly adverse to another client who is represented by the lawyer (whether in the same or a separate matter); OR
2. there is a significant risk that the representation of the client will be materially limited by the lawyer’s personal interests or by the lawyer’s duties to another client, a former client, or a third person

Question 31

When may a lawyer undertake a representation despite a concurrent conflict?

Answer 31

Notwithstanding the existence of a concurrent conflict, a lawyer MAY still undertake the representation IF:
1. the lawyer reasonably believes that they can competently and diligently represent each affected client despite the conflict (an objective “reasonably prudent and competent lawyer” standard);
2. the representation is not prohibited by law;
3. the representation does not involve asserting a claim by one client against another client represented by that lawyer in the same proceeding before a tribunal (i.e., the lawyer cannot represent parties on opposite sides of the same litigation); AND
4. each affected client gives [ABA: informed consent, confirmed in writing]
[CA: informed written consent]

Question 32

What is the rule regarding concurrent conflicts in criminal cases?

Answer 32

Although many concurrent conflicts of interest are resolvable by client consent in civil cases, the ABA and CA Rules caution against representing co-defendants in a criminal case due to the high likelihood that their interests will diverge

Question 33

Under the CA Rules, what types of relationships must a lawyer ALWAYS disclose to a client?

Answer 33

Even where a “material limitation” conflict is not present, the CA Rules provide that a lawyer must always provide the client written disclosure of the following relationships:
1. the lawyer (or another lawyer in their firm) has a legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client’s matter; OR
2. the lawyer (or another lawyer in their firm) is an immediate family member of, lives with, is in an intimate personal relationship with, or is a client of the firm of, another party’s attorney in the client’s matter

Question 34

What is a disqualifying “former client” conflict?

Answer 34

A lawyer must NOT represent a client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which the lawyer represented the former client UNLESS the former client gives:
ABA: informed consent, confirmed in writing
CA: informed written consent

Question 35

When are two matters “substantially related” for purposes of former client conflicts?

Answer 35

Two matters are “substantially related” if:
1. they involve the same transaction or legal dispute; OR
2. there is a substantial risk that confidential factual information that would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter

Question 36

What is a disqualifying conflict with a client of the lawyer’s former firm?

Answer 36

If a lawyer’s former firm represented a client in a matter and the lawyer ACTUALLY ACQUIRED confidential information that is material to the matter while working at the former firm, the lawyer must NOT subsequently represent another person in the same or a substantially related matter ADVERSE to the former firm’s client UNLESS the former firm’s client gives:
ABA: informed consent, confirmed in writing
CA: informed written consent

Question 37

How may imputation of a disqualifying “former firm” conflict be cured?

Answer 37

Where a lawyer’s former-client conflict arises out of the lawyer’s association with a former firm, the imputation will be cured and does NOT disqualify other lawyers at his new firm if:
1. the disqualified lawyer is timely screened from the matter
2. the disqualified lawyer does not share in the fee from the matter
3. the former client is given notice to ensure compliance
4. CA: the disqualified lawyer did not substantially participate in the same or substantially related matter while at the former firm

Conflict Can Also Be Waived
Additionally, the disqualified lawyer’s new firm is not disqualified from representing the new client if the former client waives the conflict by giving:
ABA: informed consent, confirmed in writing
CA: informed written consent

Question 38

When does a firm have a disqualifying conflict in relation to a departing lawyer’s client?

Answer 38

If a lawyer represented a client in a matter and then left his firm, taking the representation with him, his former firm is NOT prohibited from representing a client adverse to that former client UNLESS:
1. the matter is the same or substantially related to that in which the departing lawyer represented the former client; AND
2. at least one remaining lawyer in the firm has confidential information that is MATERIAL to the matter

Conflict Can Also Be Waived
Additionally, the former firm is not disqualified from representing the new client if the former client waives the conflict by giving:
ABA: informed consent, confirmed in writing
CA: informed written consent

Question 39

What is a prospective client?

Answer 39

A prospective client is a person who consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship with respect to a matter
* A person is NOT a prospective client if they unilaterally communicate information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of representation

Question 40

When does a lawyer have a disqualifying conflict with a prospective client?

Answer 40

A lawyer who obtains confidential information during a consultation with a prospective client must NOT subsequently represent a client adverse to the prospective client in the same or a substantially related matter if the confidential information could be SIGNIFICANTLY HARMFUL to the prospective client unless BOTH the current client and the prospective client give:
* ABA: informed consent, confirmed in writing
* CA: informed written consent

CA: The CA Rules provide that a conflict exists if the confidential information gained from the prospective client is MATERIAL to the current matter; it does NOT need to be “significantly harmful” to the prospective client

Question 41

How may an imputed disqualification on account of a prospective client conflict be cured?

Answer 41

If a lawyer has a disqualifying prospective client-conflict, it will NOT be imputed to other lawyers at his firm if they:
1. demonstrate that the disqualified lawyer took care to avoid exposure to more confidential information than was necessary to determine whether to represent the prospective client;
2. demonstrate that the disqualified lawyer is timely screened from the matter and will not share in the fee from the matter; AND
3. give written notice to the prospective client

Question 42

When does a former government lawyer have a disqualifying conflict on account of a prior matter, and how may imputation of that conflict to the lawyer’s firm be cured?

Answer 42

A lawyer who leaves government service and enters private practice must NOT represent a private client in a matter in which the lawyer participated personally and substantially while in government service UNLESS the government agency gives:
* ABA: informed consent, confirmed in writing
* CA: informed written consent

Curing Imputation:
The former government lawyer’s disqualifying conflict will NOT be imputed to other lawyers at his new firm if:
1. the disqualified lawyer is timely screened from the matter;
2. the disqualified lawyer does not share in the fee from the matter; AND
3. written notice is given to the government agency to ensure compliance

Question 43

When does a former government lawyer have a disqualifying conflict on account of a information gained while a government lawyer, and how may imputation of that conflict to the lawyer’s firm be cured?

Answer 43

If a lawyer ACTUALLY received “confidential government information” about a person while in government service, the lawyer must NOT later represent a private client whose interests are adverse to that person, when the information could be used to the material disadvantage of that person
* “Confidential government information” means information gained under government authority that the government is prohibited from revealing and that is not available to the public

Curing Imputation:
Imputation to others at the lawyer’s new firm will be cured if the disqualified lawyer is timely screened from the matter and does not share in the fee

Question 44

What is the special conflict rule regarding use of a client’s confidential information?

Answer 44

A lawyer must NOT use confidential information to a client’s disadvantage UNLESS:
1. the client gives informed consent; OR
2. an exception to the duty of confidentiality applies

NOTE: A lawyer is similarly prohibited from using confidential information to the disadvantage of a former or prospective client, unless the information has become generally known

Question 45

What is the special conflict rule regarding business transactions with a client?

Answer 45

A lawyer must NOT enter into a business transaction with a client, or knowingly acquire an ownership, possessory, security or pecuniary interest that is adverse to a client, UNLESS:
1. the terms are fair to the client;
2. the terms and lawyer’s role in the transaction are disclosed to the client in a writing that the client can reasonably understand;
3. the client is advised in writing that they should get independent advice from an outside lawyer before entering into the transaction; AND
4. the client gives informed consent, in a writing signed by the client

NOTE: This rule does not apply to standard commercial transactions between the lawyer and client for products or services that the client generally markets to others

Question 46

Under the ABA Rules, what is the special conflict rule regarding a lawyer providing financial assistance to a client?

Answer 46

Under the ABA Rules, a lawyer must NOT provide financial assistance to a client in connection with pending or contemplated litigation EXCEPT:
1. the lawyer may advance court costs and litigation expenses, and the repayment may be contingent on the outcome of the case;
2. if the client is indigent, the lawyer may pay the court costs and litigation expenses outright; AND
3. a lawyer representing an indigent client pro bono may provide modest gifts to the client for basic living expenses; however, the lawyer must not (i) promise or imply the availability of such gifts, (ii) seek or accept reimbursement from the client or anyone affiliated with the client, or (iii) publicize or advertise a willingness to provide such gifts to prospective clients

Question 47

Under the CA Rules, what is the special conflict rule regarding a lawyer providing financial assistance to a client?

Answer 47

Under the CA Rules, a lawyer must NOT provide financial assistance to a client EXCEPT:
1. the lawyer may advance any expenses incurred in promoting or protecting the client’s interests (regardless of whether in a litigated matter), and the repayment may be contingent on the outcome of the case;
2. if the client is indigent, the lawyer may outright pay for any expenses incurred in promoting or protecting the client’s interests;
3. after being hired, the lawyer may lend the client money for any purpose if the client gives them a written promise to repay the loan; AND
4. with the client’s consent, the lawyer may pay, or agree to pay, the client’s expenses to a third party from funds collected for the client as a result of the representation

Question 48

What are the specific conflict rules regarding a lawyer accepting compensation from third parties?

Answer 48

A lawyer must NOT accept compensation for representing a client from a third party UNLESS:
1. there is no interference with the lawyer’s independence of professional judgment or the lawyer-client relationship;
2. confidential information relating to the representation of the client is protected; AND
3. ABA: the client gives informed consent
CA: the client gives informed written consent

CA: Under the CA Rules, disclosure and consent are not required at all if:
1. nondisclosure or the compensation is otherwise authorized by court order; OR
2. the lawyer is rendering legal services on behalf of a public agency or nonprofit organization that provides legal services to the public

Question 49

What is the special conflict rule regarding settlement of a claim with a client?

Answer 49

A lawyer must NOT settle a claim or potential claim for malpractice liability with an unrepresented client or former client without:
1. advising that person in writing that independent counsel is desirable; AND
2. giving that person a reasonable chance to consult with independent counsel

Question 50

What are the special conflict rules regarding prospectively limiting malpractice liability?

Answer 50

ABA: Under the ABA Rules, a lawyer must NOT make an agreement prospectively limiting the lawyer’s malpractice liability to a client unless the client is independently represented in making the agreement

CA: The CA Rules do not allow a lawyer to prospectively limit malpractice liability to a client under any circumstance

Question 51

What are the special conflict rules regarding sexual relationships with clients?

Answer 51

A lawyer must NOT have a sexual relationship with a client unless:
1. the sexual relationship pre-dates the lawyer-client relationship
2. CA: the lawyer and client are married or in a registered domestic partnership

NOTE: If the client is an organization, the rule applies to a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters

Question 52

What is the special conflict rule regarding a lawyer’s membership in a legal services organization?

Answer 52

A lawyer MAY serve as a director, officer or member of a legal services organization even though the organization serves persons whose interests are adverse to the lawyer’s regular clients; however, the lawyer must not knowingly participate in a decision or action of the organization if doing so:
1. would be incompatible with the lawyer’s obligations to a client under the general conflict of interest rules; OR
2. would adversely affect the representation of one of the organization’s clients whose interests are adverse to those of one of the lawyer’s clients

Question 53

What are the ABA Rules regarding legal fees?

Answer 53

Under the ABA Rules, a lawyer must NOT make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses

Question 54

What are the CA Rules regarding legal fees?

Answer 54

The CA Rules prohibit illegal or unconsionable fees (i.e., a fee so exorbitant and wholly disproportionate to the services performed as to shock the conscience)

Question 55

What factors are considered in determining whether a fee is reasonable under the ABA Rules?

“TENT FLAW”

Answer 55

Under the ABA Rules, the following factors are considered in determining whether a fee is reasonable:
1. Time and labor required
2. Experience, ability and reputation of the lawyer
3. Novelty and difficulty of issues involved
4. Time limitations imposed by client or circumstances
5. Fees customarily charged within locality for similar work
6. Likelihood that representation will preclude other employment
7. Amount involved and result obtained
8. Whether fee is fixed or contingent

“TENT FLAW”

Question 56

What factors are considered in determining whether a fee is unconscionable under the CA Rules?

Answer 56

Under the CA Rules, in determining whether a fee is unconscionable, a court will consider the factors applicable under the ABA Rules as well as:
1. Failure to disclose material facts
2. Fraud or overreaching in negotiating or setting the fee
3. Relative sophistication of lawyer and client
4. Whether the client gave informed consent

Question 57

What do the ABA Rules require for fee agreements?

Answer 57

Under the ABA Rules, a lawyer must, before or within a reasonable time after commencing a representation, communicate the basis or rate of the fee and the expenses for which the client will be responsible
* As a general rule, fee agreements need NOT be in writing (except for contingency fee agreements), although a writing is preferable

EXCEPTION: If the lawyer regularly represents the client and will be charging the same basis or rate as in other matters, this communication is NOT required each time

Question 58

What do the CA Rules require for fee agreements?

Answer 58

Under California law, it if is reasonably foreseeable that the total expense to the client (including legal fees) will exceed $1,000, the fee agreement MUST be in writing to be enforceable

EXCEPTIONS: Even if the total expense to the client will exceed $1,000, a written agreement is NOT required if:
1. the client is a corporation;
2. the client states in writing that they do not want a written fee agreement;
3. the legal services are the same kind of services that the client has previously received and paid for;
4. the lawyer acted in an emergency to protect the client’s rights; OR
5. a writing is impractical for other reasons

Question 59

What are the rules regarding advance payments / retainers?

Answer 59

A lawyer may require an advance payment (including a flat fee), but the lawyer must refund the unearned portion of the fee if the client fires the lawyer or the lawyer does not perform the services
* But a lawyer is NOT required to refund a true retainer fee (i.e., a fee that is paid solely to ensure the lawyer’s availability)

CA: The CA Rules specifically prohibit a lawyer from telling the client that any fee is “nonrefundable,” “earned on receipt,” or similar
UNLESS:
1. the fee is a true retainer (i.e., paid solely to ensure the lawyer’s availability); AND
2. the client agrees in writing after disclosure that they will not be entitled to any refund

Question 60

What are the rules regarding contingency fees?

Answer 60

A contingent fee must be reasonable, and a lawyer must not use a contingent fee when the facts of the case make it unreasonable to do so

CA: California law specifically limits the amount of contingency fee agreements in medical malpractice cases (maximum amounts start with 40% of the first $50,000, and end with 15% of any amount in excess of $600,000)

Question 61

What are the rules regarding contingency fee agreements?

Answer 61

All contingent fee agreements must be in writing and signed by the client, and must disclose:
1. how the fee will be calculated
2. what expenses will be deducted from the recovery
3. whether expenses will be deducted before or after the contingent fee is calculated
4. what expenses the client must pay regardless of the outcome
5. CA: that the lawyer’s percentage is not set by law and can be negotiated between the lawyer and client
6. CA: how the client will be charged for work not covered by the contingency

Additionally, at the end of the case, the lawyer must give the client a written statement describing:
1. the outcome;
2. the remittance to the client; AND
3. how the remittance was calculated

Question 62

When are contingency fee agreements prohibited?

Answer 62

A lawyer must NOT enter into a contingent fee agreement for:
1. defending a client in a criminal case; OR
2. representing a client in a domestic relations case where the fee is contingent on the securing of a divorce, the amount of an alimony or child support award, or the amount of a property settlement (but contingent fee agreements are permitted in a suit to recover post-judgment balances under an existing order)

Question 63

What are the ABA Rules regarding sharing fees with outside lawyers?

Answer 63

Under the ABA Rules, a lawyer may share legal fees with a lawyer at a different firm ONLY IF:
1. the total fee is reasonable;
2. either the split is (a) proportionate to the services performed by each lawyer, or (b) in some other proportion if each lawyer assumes joint responsibility for the matter; AND
3. the client agrees to the split in a writing that discloses each lawyer’s share

Question 64

What are the CA Rules regarding sharing fees with outside lawyers?

Answer 64

The CA Rules allow “true” referral fees and do not require that the split among lawyers be proportionate to services or that the lawyers assume joint responsibility, BUT:
1. the agreement between the lawyers to divide the fee must be in writing;
2. the total fee charged by all lawyers must not be increased solely by reason of the fee-splitting agreement; AND
3. the client must provide informed written consent to the fee division and its terms

Question 65

What are the ABA/CA rules regarding sharing fees with non-lawyers?

Answer 65

A lawyer or law firm must NOT share legal fees with a nonlawyer, subject to the following limited exceptions:
1. paying a death benefit to a dead lawyer’s estate or other designated persons
2. purchasing a law practice of a dead, disabled or disappeared lawyer and paying the purchase price to the estate or nonlawyer representatives
3. including nonlawyer employees in a compensation or retirement program (even if funded by legal fees)
4. sharing court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter

Question 66

What are the additional CA-only exceptions to the prohibition against sharing legal fees with non-lawyers?

Answer 66

The CA Rules recognize the additional exceptions to the rule against sharing legal fees with a nonlawyer:
1. sharing legal fees that are not court-awarded with a nonprofit organization that brought the lawyer into the matter if:
(i) the organization qualifies as a 501(c)(3) exempt organization;
(ii) the lawyer enters into a written agreement with the organization to divide the fee;
(iii) the client gives informed written consent to the proposed fee division and its terms (including the identity of the organization); AND
(iv) the total fee charged by the lawyer is not increased solely by reason of the fee division agreement
2. paying a prescribed registration, referral or other fee to a lawyer referral service established, sponsored and operated in accordance with the State Bar of California’s Minimum Standards for Lawyer Referral Services

Question 67

What are the rules regarding safeguarding client property?

Answer 67

A lawyer MUST:
1. identify and label securities and property of the client or third person and put them in a safe deposit box or other place of safekeeping as soon as practicable
2. promptly notify the client or third person when the lawyer receives funds or property in which the client or third person has an interest
3. promptly deliver funds or property to which the client or third person is entitled
4. render written accountings and maintain records for at least 5 years after final distribution of property

Question 68

What are the rules regarding separation of client funds?

Answer 68

All money that a lawyer receives in connection with a representation (whether from the client or a third party) must promptly be placed in an interest-bearing client trust account, separate from the lawyer’s own personal and business accounts
* The lawyer must NEVER place their own money or their firm’s money into the client trust account, except for the sole purpose of paying bank service charges

CA: The California separation of funds rule applies to all funds received or held by a lawyer for the benefit of a client, or for the benefit of a third person to whom the lawyer owes a legal duty, and the trust account must be maintained in California, or, with the client’s written consent, in a different jurisdiction with which the client has a substantial relationship

Question 69

What are the rules regarding disputed funds?

Answer 69

When a lawyer possesses property in which at least 2 persons claim interests (one of whom may be the lawyer), the disputed portion must be kept separate by the lawyer until resolution of the dispute, but the lawyer must promptly distribute all portions of the property that are NOT in dispute

Question 70

What are the rules regarding false statements of law made to a court?

Answer 70

A lawyer must NOT knowingly:
1. make a false statement of law to the court
2. fail to correct a previous false statement of law made to the court
3. fail to disclose to the court legal authority in the controlling jurisdiction that is directly adverse to the client’s position and has not been disclosed by opposing counsel
4. CA: misquote to the court the language of a book, statute, decision or other authority

Question 71

What are the rules regarding false statements of fact made to a court?

Answer 71

A lawyer must NOT knowingly make a false statement of fact to the court, or fail to correct a previously made false statement of material fact

NOTE: As a general rule, a lawyer is under no obligation to volunteer a fact that is harmful to their client’s case; however, in an ex parte proceeding, the lawyer must inform the court of all material facts known to the lawyer that will help the court make an informed decision

Question 72

What are the rules regarding the offer of false evidence?

Answer 72

A lawyer MUST refuse to offer evidence that the lawyer knows is false
* A lawyer MAY refuse to offer evidence that they reasonably believe is false, except for a criminal defendant’s testimony on their own behalf

REMEDIAL MEASURES:
If a lawyer has offered evidence they later discover is false, they must take reasonable remedial measures:
1. urge the client to cooperate in withdrawing or correcting the false evidence;
2. if unsuccessful, seek to withdraw if necessary, and/or take other measures to strike the evidence; AND
3. if all else fails, disclose the situation to the judge, even if that means disclosing confidential client information
> CA: The CA Rules provide that reasonable remedial measures must NOT involve revealing confidential client information

Question 73

What are the rules regarding perjury by a criminal defendant?

Answer 73

If the client is a criminal defendant and the lawyer knows that the client intends to testify falsely (or has already done so), the lawyer must take reasonable remedial measures:
1. try to persuade the client not to testify falsely or to recant the false testimony;
2. seek to withdraw; AND
3. if all else fails:
ABA: reveal the situation to the judge
CA: offer the defendant’s testimony in narrative form

Question 74

What are the rules regarding frivolous claims and defenses?

Answer 74

A lawyer who is serving as an advocate in a legal proceeding must NOT take a position unless there is a non-frivolous basis in law and fact for doing so

CA: The CA Rules also prohibit a lawyer from bringing or continuing an action, conducting a defense, asserting a position in litigation, or taking an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person

EXCEPTIONS:
* A position is not frivolous if the lawyer can make a good-faith argument for an extension, modification or reversal of existing law
* The lawyer for the defendant in a criminal case may conduct the defense so that the prosecutor must prove every necessary element of the case

Question 75

What are the rules regarding opposing counsel’s access to evidence?

Answer 75

A lawyer must NOT:
1. unlawfully obstruct another party’s access to evidence
2. unlawfully alter, destroy or conceal evidence
3. CA: suppress evidence that the lawyer or his client has a legal obligation to produce
4. CA: advise a person to hide or flee the jurisdiction for the purpose of making that person unavailable as a witness

Question 76

What are the rules regarding advising a person not to give information to an opposing party?

Answer 76

Under the ABA Rules, a lawyer may advise a person not to give information to an opponent or other party ONLY IF:
1. the person is a client or the client’s relative, employee or agent; AND
2. the lawyer reasonably believes that the person’s interests will not be harmed by not volunteering the information

CA: California has no equivalent rule

Question 77

What are the rules regarding abuse of the discovery process?

Answer 77

ABA: Under the ABA Rules, a lawyer:
1. must NOT make a frivolous discovery request; AND
2. MUST make reasonable efforts to comply with a legally proper discovery request made by his adversary

CA: California has no equivalent rule; in fact, the comments to the CA Rules note that a violation of a discovery rule or statute does not necessarily constitute an ethical violation

Question 78

What is the general rule regarding lawyer advertisements?

Answer 78

Lawyers may advertise in any media but must NOT make a false or misleading statement about themselves or their services

Question 79

When is a statement in a lawyer advertisement “misleading”?

Answer 79

A statement is “misleading” if it:
1. would lead a reasonable person to reach an unfounded conclusion
2. reports the lawyer’s achievements on behalf of clients and would lead a reasonable person to form an unjustified expectation of receiving the same results in a similar matter
3. contains an unsubstantiated comparison or claim of the lawyer’s services or fees, presented with such specificity as to lead a reasonable person to conclude that the comparison or claim can be substantiated
4. CA: states or implies that the lawyer is able to provide legal services in a language other than English, unless (i) the lawyer can actually provide legal services in such language or (ii) the communication also states, in the language of the communication, the employment title of the person in the firm who speaks the language
5. CA: states or implies “no fee without recovery” unless the communication also expressly discloses whether or not the client will be liable for costs

Question 80

What does the California Business and Professions Code specifically prohibit in lawyer advertisements?

Answer 80

The California Business and Professions Code specifically prohibits advertisements that contain:
1. a guarantee or warranty of the outcome of a case;
2. words or symbols that suggest quick cash or a quick settlement;
3. an impersonation of a lawyer or client without disclosing that it is an impersonation;
4. a dramatization of an accident or other event without disclosing that it is a dramatization; OR
5. a contingent fee offer that does not warn that a client who loses a case must still pay litigation costs (if that is in fact the arrangement)

Question 81

What are the rules regarding communication of specialties in lawyer advertisements?

Answer 81

A lawyer may communicate the fact that they do or do not practice in particular fields of law, and that their practice specializes in, is limited to, or is concentrated in a particular field of law, as long as such a statement is not false or misleading

A lawyer must not state or imply they are certified as a specialist in a particular field of law unless:
1. the lawyer has in fact been certified as a specialist by an approved organization; AND
2. the name of the certifying organization is clearly identified in the communication

Question 82

What is solicitation of legal services?

Answer 82

A solicitation is a targeted communication initiated by the lawyer that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter, and that directly or indirectly offers to provide legal services in that matter

Question 83

What are the rules regarding live, person-to-person solicitation?

Answer 83

Subject to limited exceptions, a lawyer must NOT, by live person-to-person contact, solicit professional employment when a significant motive is the lawyer’s pecuniary gain
* “Live person-to-person contact” means in-person, live telephone or other real-time viusal or auditory person-to-person communications where the targeted person is subject to a direct personal encounter without time for reflection

EXCEPTIONS: A lawyer is not prohibited from soliciting the following persons by live person-to-person contact:
1. another lawyer
2. a person with whom the lawyer has a familial, close personal, or prior professional relationship (including current and former clients)
3. ABA: a person who routinely uses for business purposes the type of legal services offered by the lawyer

BUT: The lawyer IS STILL PROHIBITED from soliciting the foregoing persons (by any means) if (i) they have made known to the lawyer they do not want to be solicited or (ii) the solicitation involves coercion, duress or harassment

Question 84

What are the rules regarding targeted written or telephonic solicitation?

Answer 84

A lawyer is generally PERMITTED to send truthful, nondeceptive communications via mail, email or recorded telephone messages to persons known to face a specific legal problem UNLESS:
1. the person has made known to the lawyer they do not want to be solicited; OR
2. the solicitation involves coercion, duress or harassment

CA: The CA Rules also provide that targeted communications must include “advertisement” or words of similar import on the outside envelope (if any) or at the beginning and end of any recorded or electronic communication UNLESS:
1. the target is another lawyer, or a person with whom the lawyer has a close personal or prior professional relationship; OR
2. it is apparent from the context that the communication is an advertisement

Question 85

What are the rules regarding a lawyer paying for recommendations?

Answer 85

As a general rule, a lawyer must NOT give anything of value for another person’s recommendation of the lawyer’s services

However, a lawyer MAY:
1. give a nominal gift or gratuity as a token of appreciation; provided the gift or gratuity was not offered or given in consideration of an understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future;
2. refer a client to another lawyer or a nonlawyer professional as part of a reciprocal referral arrangement with such person, provided that (i) such arrangement is not exclusive and (ii) the client is informed of the existence and nature of the arrangement;
3. pay the reasonable costs of advertising;
4. pay the usual charges of a legal service plan, not-for-profit lawyer referral service or qualified lawyer referral service; AND
5. pay to purchase a law practice

Question 86

What are the CA Rules regarding the employment of disbarred, suspended, resigned or voluntarily inactive lawyers?

Answer 86

An active California lawyer must comply with various requirements upon engaging the services of a disbarred, suspended, resigned or voluntarily inactive lawyer (“ineligible person”), including:
1. notifying the California State Bar in writing before engaging the ineligible person and after the ineligible person’s employment is terminated; AND
2. providing written notice to all clients on whose matters the ineligible person will work

Prohibited Activities
The ineligible person cannot engage in:
1. legal consultation;
2. negotiations;
3. appearances on the client’s behalf;
4. handling the client’s funds; OR
5. other activities that constitute the practice of law

Permitted Activities
The ineligible person CAN engage in:
1. research;
2. drafting;
3. clerical assistance; AND
4. direct communication with the client limited to scheduling, billing, updates, etc.

NOTE: This rule does not apply if the ineligible person is employed for the sole purpose of providing support activities, e.g., equipment maintenance, courier or delivery services, catering, etc.

Question 87

What are the rules regarding association with non-lawyers?

Answer 87

To ensure that lawyers maintain their professional independence:
1. a lawyer must not form a partnership or other organization with a nonlawyer if any of the organization’s activities consist of the practice of law
2. law firms must not be set up in such a way that a nonlawyer:
(i) owns an interest in the firm;
(ii) is a corporate officer or director of the firm; OR
(iii) has the right to direct or control a lawyer’s professional judgment
3. a lawyer must not permit a person who recommends, employs or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment

Question 88

When is a lawyer subject to discipline for another lawyer’s misconduct?

Answer 88

A lawyer is subject to discipline for a disciplinary violation committed by a second lawyer (or an act of a nonlawyer that, if done by a lawyer, would subject them to disciplinary action) when:
1. the lawyer ordered the second lawyer’s (or nonlawyer’s) misconduct, or knew about and ratified such misconduct; OR
2. the lawyer was a partner, manager, or had direct supervisory responsibility over the second lawyer (or nonlawyer), and they knew about the misconduct at a time when its consequences could be avoided or mitigated but failed to reasonable remedial action

Question 89

What is a lawyer’s responsibilities vis-a-vis subordinates?

Answer 89

A partner or other managing lawyer in a firm must make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurances that all members of the firm conform to the rules of professional conduct
* A lawyer with direct supervisory authority over particular lawyers has the same responsibility with respect to those lawyers

Question 90

What are a subordinate lawyer’s responsibilities?

Answer 90

A subordinate lawyer will be responsible for clearly unethical misconduct even if they were “just following orders”
* However, a subordinate lawyer will NOT be subject to discipline for acting in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty

Question 91

When is a lawyer subject to disciplinary action?

Answer 91

A lawyer is subject to discipline for any of the following acts of professional misconduct:
1. an actual or attempted violation of a rule of professional conduct, either individually or through the acts of another;
2. committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects;
3. engaging in any conduct involving dishonesty, fraud, deceit or misrepresentation;
4. engaging in conduct prejudicial to the administration of justice;
5. knowingly assisting a judge in violating the rules of judicial conduct or other law;
6. stating or implying an ability to improperly influence a government agency or official to achieve results by illegal or unethical means;
7. making a statement they know to be false, or with reckless disregard as to the truth or falsity, about the qualifications or integrity of a judge or judicial candidate [ABA: also public legal officer or candidate];
8. engaging in harassment or discrimination in conduct related to the practice of law based on a protected characteristic
CA: The CA Rule only applies to “unlawful” discrimination, but also prohibits unlawful retaliation and permitting unlawful discrimination or harassment in relation to a law firm’s operations; a lawyer who is subject to a disciplinary proceeding for violating this rule must also promptly notify the California State Bar of any criminal civil or administrative action premised on the same conduct

Question 92

What are the special duties of a prosecutor in their own case?

Answer 92

A prosecutor in a criminal case MUST:
1. refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause
2. make reasonable efforts to assure that the accused has been advised of the right to counsel and has been given reasonable opportunity to obtain counsel
3. not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing
4. make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigate the offense, unless the prosecutor is relieved of this responsibility by a protective order (this duty exceeds the constitutional Brady obligation)
5. exercise reasonable care to prevent investigators or other persons assisting the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making
6. ABA: not subpoena a lawyer to present evidence about a client unless the prosecutor reasonably believes:
(i) the information is not privileged;
(ii) the evidence is essential; AND
(iii) there is no feasible alternative

Question 93

What are the special duties of prosecutors with respect to any case?

Answer 93

Must Disclose New, Credible and Material Exculpatory Evidence:
* When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit the offense for which he was convicted, the prosecutor must promptly disclose the evidence to an appropriate court or authority
* If the conviction occurred in the prosecutor’s own jurisdiction, the prosecutor must also promptly disclose the evidence to the defendant and make reasonable efforts to cause an investigation

Must Remedy Conviction of Innocent in Own Jurisdiction:
* When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s own jurisdiction was convicted of an offense he did not commit, the prosecutor must seek to remedy the conviction

Question 94

What are the rules regarding extrajudicial statements?

Answer 94

A lawyer who is connected with a case (or any associated lawyer in their firm) must NOT make any extrajudicial statement that the lawyer reasonably should know:
1. will be publicly disseminated; AND
2. will have a substantial likelihood of materially prejudicing the case

Question 95

When is a lawyer entitled to reply to an extrajudicial statement?

Answer 95

A lawyer is permitted to make a public statement that a reasonable lawyer would belive is required to protect a client from the substantial undue prejudicial effect of recent publicity NOT initiated by the lawyer or his client

Question 96

What are the rules regarding communication with a represented person?

Answer 96

When a lawyer KNOWS a person is represented by counsel in one of the lawyer’s matters, the lawyer must NOT communicate with that person about the subject of the representation UNLESS:
1. the person’s counsel has granted permission
2. the lawyer is otherwise authorized by law or court order to make the direct communication
3. CA: the person is a public official or entity

NOTE: Subject to the above exceptions, this rule also covers any high-ranking employee or other constituent of a represented organization whose communication might bind or be imputed to the organization