Rule Statements Flashcards
supervision of non-lawyers
Under the Model Rules and the CRPC, a lawyer with direct supervisory authority over another lawyer or non-lawyer must make reasonable efforts to ensure that the supervised person’s conduct conforms to the ethics rules.
duty to avoid the unauthorized practice of law (CA)
do not not employ, associate in practice with, or assist a person the lawyer knows or reasonably should know is not a licensed lawyer to:
(i) render legal advice to a client,
(ii) make appearances on behalf of a client,
(iii) appear as a representative of the client in admin or discovery matters, or
(iv) engage in activities that constitute the practice of law.
However, a lawyer may employ, associate in practice with, or assist an ineligible person to perform research, drafting, or clerical activities.
AARP = advise, appear, rep client, practice law
CDR: clerical, draft, research
threatening a claim to gain advantage
California lawyers are specifically prohibited from, and subject to discipline for, threatening to bring “criminal, administrative, or disciplinary charges” in an effort to obtain an advantage in a civil dispute.
duty to not file a frivolous claim
The MR prohibit lawyers from bringing or defending a proceeding, or taking a position, unless there is a basis in law and fact for doing so that is not frivolous.
Under the CRPC, a lawyer must not present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument for an extension, modification, or reversal of such existing law.
comms with represented organization
Under the Model Rules, a lawyer is prohibited from communicating with a constituent of the organization who has authority to obligate the organization, or whose act or omission may be imputed for purposes of civil or criminal liability.
Under the CRPC, a lawyer is prohibited from communicating with
(i) a current officer, director, partner, or managing agent of the organization or
(ii) a current constituent of the organization if the subject of the communication is any act or omission of such person that can be imputed
duty of competence
Under the Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
The CRPC require that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence. And lawyer must have: (i) the learning and skill and (ii) mental, emotional, and physical ability reasonably necessary for the representation.
MR: PS TK
CA: RR I
duty of loyalty
Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a conflict of interest, the lawyer may be in breach of the duty of loyalty. A conflict of interest may arise between the lawyer and the client, current clients, current and prospective clients, current and former clients, or between current clients and third parties
conflict of interest- current clients
Under the Model Rules and CAPR, a lawyer must not represent a client if:
directly adverse to the interests of another current client or
a significant risk that the representation of the client will be materially limited
unless:
(i) the lawyer reasonably believes that she will be able to provide competent and diligent representation;
(ii) the representation is not prohibited by law;
(iii) the representation does not involve the same litigation or other proceeding before a tribunal; and
(iv) each affected client gives informed consent, confirmed in writing. in CA, need informed written consent
conflict of interest -former clients
Under the Model Rules, a lawyer who has previously represented a client in a matter must not subsequently represent another person:
-in the same or a substantially related matter
-in which that person’s interests are materially adverse to the interests of the former client
-unless the former client gives informed consent, confirmed in writing.
duty of confidentiality
Under the Model Rules, a lawyer is prohibited from disclosing information relating to the representation of a client, unless:
* the client gives informed consent;
* the disclosure is impliedly authorized in order to carry out the representation;
* death/substantial harm or financial harm
The CRPC requires lawyers to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.”
* unless the client gives informed consent
* death/substantial harm
lawyer-client privilege
- client’s communication with a lawyer
- The communication must be intended to be confidential
- purpose of seeking legal advice
The client holds the privilege and is the only one who may waive it. The lawyer must assert the privilege on the client’s behalf to protect the client’s interests.
exception: A dispute between co-clients who are now adverse to each other
payment from a third party
A lawyer may not accept payment for representation from someone other than the client, unless: (i) the client gives informed consent; (ii) there is no interference with the lawyer’s professional judgment; and (iii) lawyer-client confidentiality is preserved.
attorney-client relationship formation
The lawyer-client relationship begins when the client reasonably believes the relationship exists. No formal writing or agreement is required.
organization as client
A lawyer who represents an organization owes the duties of loyalty and confidentiality to the organization, not to its individual constituents.
In dealing with an organization’s constituents, a lawyer must:
* explain the identity of the client whenever organization’s interests are or may become adverse to those of the constituents
* not mislead such a constituent into believing that the constituent may communicate confidential information
communication of fee
All rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.
written fee agreement
California requires that a contract for services be in writing when it is reasonably foreseeable that the total expense to a client, including attorney’s fees, will exceed $1,000.
A copy of the written contract, signed by both parties, must be given to the client or the client’s representative
However, as an exception to the rule, a writing is not required when the client is a corporation.
duty to communicate
Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.
withdrawal - when rep would require breaking PR rules
MR, a lawyer must withdraw if failure to do so would result in violating the ethics rules or other law.
CA RPC, a lawyer must withdraw if he knows or reasonably should know that the representation would result in a violation of the CA RPC or the SBA.
conflict of interest- atty-client
A potential conflict of interest arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the interests of another current or former client or third party.
However, under both the ABA Model Rules (MR) and the California Rules of Professional Conduct (CA RPC), if there is a concurrent potential COI, a lawyer may undertake the representation if (i) the lawyer reasonably believes that he can competently and diligently represent each affected client, (ii) it is not prohibited by law, (iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case or other proceeding before a tribunal, and (iv) each affected client gives informed, written consent (MR “informed consent, confirmed in writing”).
inadvertent disclosure
Under the MR, a lawyer who receives a documentand who knows or reasonably should know that the document was inadvertently sent must promptly notify the sender.
CA RPC, when it is reasonably apparent to a lawyer that a writing was inadvertently sent or produced, and the lawyer knows or reasonably should know that the writing is privileged or subject to the work product doctrine, the lawyer must:
(i) refrain from examining the writing any more than is necessary to determine that it is privileged and
(ii) promptly notify the sender.
duty of diligence
Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client.
Under the CA RPC, a lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client
duty to accept representation
in general there is no duty to accept representation. However, there is a duty to reject it if it would violate an ethical rule or frivolous claim (CA: maliciously injure or harass)
relationship formation - not allowed to do it (CA)
In California a lawyer is not permitted to represent a client if they know or should know there is no probable cause to bring the action and that the action is being brought to harass or maliciously injure a person
scope of relationship: settlement
Only the client has the authority to make the decision to accept the settlement. The attorney must communicate all bona fide offers of the settlement to the client.
CA: lawyer must notify about any offer to plea bargain in a criminal matter and any written settlement offer in a civil matter. A lawyer must communicate an oral settlement offer in a civil matter if it is a significant development
scope of relationship: strategy
the attorney has the authority to make decisions about strategy for achieving the client’s goals. The attorney should reasonably consult with the client and keep them reasonably informed
scope of relationship: crime/fraud
a lawyer must not counsel or assist the client in criminal or fraudulent conduct. if the client is currently engaging in such conduct, the attorney must stop assisting the client and withdraw from the relationship
termination
a client has an absolute right to discharge a lawyer for no reason. the lawyer must withdraw if discharged unless ordered to continue by a court.
mandatory withdrawal
an attorney must withdraw if failure to do so would result in violating ethics rules or (ABA) other law.
fired by client
Health of lawyer makes it unreasonably difficult to carry out rep (MR: materially impairs)
CA only: lawyer must withdraw if they know or should know the client is asserting a claim/defense without probable cause and for the purpose of harassing or maliciously injuring a person
permissive withdrawal MR
Model rules: lawyer can seek to withdraw at any time he can do so without materially harming the client
or he can withdraw even if harm will result if:
-client engages in criminal or fraudulent action
-attorney learns that the client used his services to commit criminal or fraudulent action
-the client insists on a course of action that the lawyer finds repugnant or with which the attorney has a fundamental disagreement with (NOT CA)
-the client made representation unreasonably difficult (ex: failure to communicate; NOT CA)
-the representation will result in an unreasonable financial burden on the lawyer (NOT CA)
-if continued representation is likely to result in a violation of ethical rule or any other law
-lawyer’s mental or physical health makes representation difficult
-client insists that the lawyer pursue conduct that is criminal or fraudulent
-client breaches material term of agreement regarding lawyer’s services
-other good cause
NV BICH F LRD: no material harm; violation of law; breach material term; insist c/f; c/f, health; financial burden; learn of C/F, repugnant, difficult rep
CA permissive withdrawal
-client insists on presenting claim/defense not warranted under existing law and can’t be supported by good-faith argument for extension, modification, or reversal of existing law
-client seeks to pursue a criminal/fraudulent course of conduct or has used services to advance course of conduct that the lawyer reasonable believes was a crime or fraud
-client insists lawyer pursue course of conduct that is criminal or fraudulent
-client renders it unreasonably difficult for lawyer to carry out representation effectively
-representation likely to result in violation of CA rules or State Bar Act
-inability to work with co-counsel if withdrawal is in best interest of client
UCC IVF = unreasonably difficult; co-counsel; c/f; insist c/f; violation; frivolous and insist
procedure for withdrawal
lawyer must give client reasonable notice before withdrawing so client has a reasonable opportunity to find new representation.
a lawyer who wants to withdraw when the litigation is pending must obtain court approval.
duties upon termination
upon termination a lawyer has a duty to minimize harm to the client. the lawyer must return all papers and property to the client and safeguard those from damage.
MR: attorney can retain papers to obtain payment. CA: cannot, must return all
attorney must promptly return any advanced fees not yet earned
fees amount (MR)
a lawyer must charge fees that are reasonable under the circumstances
fees amount (CA)
fees must not be unconscionable (consider: amount, time worked on case, hourly fee, difficulty of case, lawyer’s experience)
contingent fees
Contingent fees are generally permitted under the Model Rules and CA Rules, but are not
allowed in
(i) criminal cases or
(ii) domestic cases when the fee is contingent on obtaining divorce or on the amount of support recovered.
contingent fee agreement and what happens if void
A contingent fee agreement requires:
Writing, signed by client;
Terms of calculating fees; and
Expenses that clients are liable for.
CA only: A duplicate copy of the agreement signed by the attorney and client must be provided
to the client at the time of signing.
failure to comply: agreement is voidable but attorney is entitled to a reasonable fee
fee splitting - same firm
Lawyers in the same firm may split fees.
fee splitting - lawyers from different rules (MR)
Model Rules: Fee splitting is allowed if:
* The fee is in proportion to the services provided by each lawyer;
* The client agrees in writing to the fee-splitting; and
* The total charged fee is reasonable.
Under the Model Rules and CA Rules, the total fees must not be higher because multiple
attorneys are working on the case.
fee splitting - lawyers from different rules (CA)
CA Rules: Fee splitting is allowed if:
* The lawyers enter in a written agreement to divide the fee;
* The client has provided written consent after full disclosure of the fee splitting; and
* The total fee charged is not unconscionable.
Under the Model Rules and CA Rules, the total fees must not be higher because multiple
attorneys are working on the case.
referral fees (MR)
The Model Rules generally prohibit paying someone for recommending a lawyer’s services, unless paying the fees of a
(i) legal services plan or
(ii) approved lawyer-referral service.
(iii) nominal gifts for appreciation
referral fees (CA)
Under CA Rules, a lawyer may give a gift or gratuity for a referral, if not offered in anticipation of the referral or future referrals.
fee splitting with non lawyers
Fees may not be split with non-lawyers and a partnership may not be made with non-lawyers if any of the activities include the practice of law.
client fund accounts
In California, all funds received or held for the benefit of clients must be deposited in one or more identifiable bank accounts labeled “Trust Account,” “Client’s Funds Account,” or something similar.
commingle funds (MR)
Lawyers must keep client property and funds separate from their own and are subject to
discipline for commingling funds. =
commingle funds (CA)
No commingling except for funds reasonably sufficient to pay bank
charges.
dispute over funds
If there is a dispute over the fees owed to the lawyer, the lawyer must distribute the undisputed funds to the client and keep the disputed funds in the client’s trust account.
lawyer-client privilege: when does it end
Under the Model Rules, the privilege is indefinite, and survives the client’s death.
Under the CA Rules, it terminates when the client’s estate is settled and the personal
representative is discharged.
lawyer-client privilege exceptions
Future Crime or Fraud:
* Under the Model Rules, there is no privilege when a communication relates to a
client’s future crime or fraud.
* In California, this exception applies to a future crime or fraud committed by anyone,
not just the client.
Death or Substantial Bodily Harm: In California, no privilege applies if the lawyer reasonably believes that disclosure of any confidential communication relating to the
representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death or substantial bodily harm of an individual.
work product
Work product generally refers to material created by the attorney in anticipation of litigation.
In California, a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal
research or theories is not discoverable under any circumstances.
–>witness statements collected by (or at the direction of) an attorney are protected at least by a qualified work-product privilege as a matter of law. If it is so inextricably intertwined with the attorney’s mental impressions, then it may be entitled to an absolute work-product privilege.
otherwise work product is only discoverable if
-will unfairly prejudice the party seeking discovery
-or will result in an injustice.
exceptions to duty of confidentiality - death or substantial harm
MR: may disclosure to prevent “reasonably certain” death or substantial bodily harm. Imminent harm or death is not required; a present and substantial threat is sufficient.
CA: may disclosure reasonably believed necessary to prevent a criminal act that the lawyer reasonably believes will result in death or substantial bodily harm. must be a “criminal act”
Under the Model Rules and CA Rules, this exception applies even if a third party and not the client causes the potential harm or death.
In CA, before revealing this information, an attorney must, if reasonable, make a good-
faith effort to persuade the client to not commit/continue the criminal act and say they can reveal
exception to confidentiality - financial harm
The Model Rules allow (but do not require) an attorney to reveal confidential
information if he reasonably believes it is necessary to prevent the client from committing a crime/fraud that will result in substantial financial injury
duty of confidentiality prospective clients
Generally, a lawyer owes a duty of confidentiality to a prospective client and the lawyer cannot use or reveal information learned during a
consultation, even if no attorney-client relationship is formed.
conflict of interest: lawyer and client conflict
Under the Model Rules and CA Rules, a lawyer must not represent a client if representation may be
materially limited by the lawyer’s own interests, unless:
o The lawyer reasonably (subjectively and objectively) believes he can provide competent and
diligent representation to the affected client;
o The representation is not prohibited by law; and
o The affected client gives informed consent, confirmed in writing.
A lawyer’s own interests include his personal interests, such as friendships and family relationships,
and memberships on committees.
COI: lawyer-client: opposing lawyers related
o Model Rules: A lawyer related to another lawyer (e.g., parent, child, sibling, or spouse) may not
represent a client in a matter in which the other lawyer is representing another party, unless
each client gives informed consent.
o CA Rules: A lawyer is not permitted to represent a client in a matter in which the lawyer knows
or reasonably should know that the other party’s lawyer is a relative, lives with the lawyer, is a
client of the lawyer, or has an intimate personal relationship with the lawyer, unless the lawyer
first informs the client in writing of the relationship.
COI: lawyer-client: sex
The Model Rules and CA Rules prohibit sexual relations with a client, unless a consensual
sexual relationship already existed when the attorney-client relationship began.
The client cannot waive this conflict through informed consent.
CA: exception for spouses and domestic partners
COI: lawyer-client: lawyer as a witness
A lawyer is not permitted to act as an advocate at a trial in which the lawyer is likely to be a
necessary witness unless:
o The testimony relates to an uncontested issue; or
o The testimony relates to the nature and value of legal services rendered in the case; or
o (Model Rules only) Disqualification of the lawyer would work substantial hardship on the
client; or
o (CA Rules only) The lawyer has obtained the client’s informed written consent.
COI: lawyer-client: acquiring interest in litigation (MR)
Under the Model Rules, a lawyer must not obtain a proprietary interest in the cause of action or
subject matter of the litigation in which he/she represents a client, unless:
o The lawyer acquires a lien by law to secure payment of a fee; or
o The lawyer contracts for a reasonable contingency fee, so long as the case is not criminal or a
domestic-relations matter.
COI: lawyer-client: financial assistance to client / advancing costs (MR)
The Model Rules prohibit financial assistance to a client with respect to pending or planned
litigation, except that a lawyer is permitted to advance litigation costs.
repayment may be made contingent on
the outcome of the case.
exception: indigent clients
COI: lawyer-client: financial assistance to client/ advancing costs (CA)
A lawyer is not permitted to pay personal or business expenses of a prospective or existing client. However:
An attorney may (with client consent) pay expenses to third persons related to the
representation;
The lawyer may advance litigation costs to the client, with repayment contingent on the
outcome of the case; and
The attorney may lend money to the client if the client promises in writing to repay the loan.
TAP = third party, advance costs, promise to repay loan
COI: lawyer-client: entering into business transactions w client
A lawyer must not enter into a business transaction with a client or knowingly acquire an adverse
interest to the client, unless:
The terms are fully disclosed in writing;
The terms are fair and reasonable;
The client understands the terms;
The client consents in writing; and
The client is encouraged to seek independent counsel and given an opportunity to do so.
FCI Dublin Ca= fair, consent, independnet counsel, disclosed, client consents
agreement to limit malpractice recovery
- CA Rules: forbidden.
- Model Rules: ok if client is repped by an independnet lawyer.
both the Model Rules and the CA RPC permit settlement of a legal malpractice claim with an unrepresented client or former client as long as the client is informed in writing of the advisability of retaining new counsel and is given a reasonable opportunity to seek representation by another lawyer in making the agreement.
same/substantially related matter
A substantially related matter will be found if the new client’s matter:
o Is the same transaction/dispute as the prior client’s; or
o Involves substantial risk that confidential factual information from the prior representation will
advance the new client’s position.
COI: prospective clients
A lawyer cannot represent a client with:
* interests materially adverse to those of a prospective client
* in the same or substantially related matter if the lawyer received information
* (CA requires “material information”) from the prospective client
* that could be significantly harmful
* (CA does not require the information to be “significantly harmful”) to the prospective client unless both clients
give:
o Informed consent, confirmed in writing (Model Rules); or
o Informed written consent (CA rules).
MS HII: materially adverse, same or substantially related, harmful/significantly harmful, information/material information, informed consent
organizational misconduct
Upon learning of an action by a person associated with organization that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably necessary in
the best interest of the organization.
within org:
The lawyer must report the matter to higher authority in the organization unless it is not in
the best interest of the organization to do so.
CA Rules: In taking any action, the lawyer must not reveal any client confidential
information.
outside org:
Model Rules: The lawyer may (not required) reveal information to outside authorities to
the extent necessary to prevent the injury if:
* The lawyer reports to the highest authority;
* The authority refuses or fails to act in a timely manner;
* The misconduct is a clear violation of law; and
* The lawyer reasonably believes the violation is reasonably certain to cause substantial
injury to the organization.
The CA Rules do not allow the lawyer to reveal confidential information to outside
authorities unless the Death or Substantial Harm exception to the Duty of Confidentiality
applies.
avoiding improper influence
A lawyer must not seek to influence a judge, juror, prospective juror, or other official by means
prohibited by law.
duty to avoid frivolous claims as they relate to 3Ps
Lawyers are prohibited from asserting or defending an action or issue in an action unless
there is a basis in law and fact. A good-faith argument for an extension, modification, or reversal of existing law is not
frivolous.
Model Rules: A claim brought to embarrass, delay, or burden a third person is a violation of
the rules.
CA Rules: A lawyer must not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal without probable cause and for the purpose of harassing or maliciously injuring any person.
duty of candor to tribunal
A lawyer must not knowingly make a false statement of law or fact to the court.
A lawyer is required to correct a false statement of law or fact previously made.
duty of fairness to opposing party/counsel: evidence
Evidence: A lawyer must not unlawfully obstruct another party’s access to evidence or
unlawfully alter, destroy, or hide a document/material, or counsel/assist another person in doing so.
CA: cannot suppress evid legally obligated to disclose
learning of false evidence after offered
If a lawyer learns about false evidence after it has been presented, the lawyer must take
reasonable remedial measures:
* Must urge the client to correct the false statement/evidence
* Model Rules: If withdrawal is not permitted, disclose the false evidence to the court,
even it requires the lawyer to reveal otherwise protected confidential information.
* CA Rules: If withdrawal is not permitted, the lawyer may not disclose confidential
information that is protected by the rules.
A lawyer should not re-state or ratify false evidence by referencing it during a closing
argument.
criminal defendants/false evidence
An attorney can only refuse to offer a criminal defendant’s testimony if he knows it is false.
If the lawyer reasonably believes, but does not know the testimony is false, the attorney
must offer the testimony.
If he knows the testimony is false or will be false, the attorney must urge the client to
correct the false statement/evidence.
* If the client refuses, the attorney must withdraw from representation under the Model
Rules; under the CA Rules, withdrawal is optional.
If withdrawal is denied:
* CA Rules: The lawyer can question the defendant until the point of the falsehood and
then allow the defendant to testify through narrative without asking the defendant
questions.
* Model Rules: The lawyer must disclose the false evidence to the court, even it requires
the lawyer to reveal otherwise protected confidential information.
perjury
A lawyer must not falsify evidence and may not counsel a witness to testify falsely or assist a
witness in testifying falsely.
communications to juror
A lawyer is not permitted to communicate with jurors outside of court before or during the
proceeding.
communications to persons represented
A lawyer is not permitted to communicate about the representation with a
person the lawyer knows to be represented by another lawyer without consent.
If the represented person contacts the lawyer, the lawyer must terminate the communication upon learning that the person is represented.
communications to organizations represented by counsel
A lawyer is generally prohibited from communicating with a constituent of an organization.
However, consent is not required to communicate with a former constituent.
communications to persons unrepresented by counsel
When communicating with a person not represented by counsel, an attorney must not give legal advice and must make it clear who he represents.
An attorney may negotiate the terms of a transaction or settlement agreement with an unrepresented person.
trial publicity
A lawyer is not permitted to make an out of court statement that he knows/should know
(i) will be distributed publicly and
(ii) will have a substantial likelihood of materially prejudicing the court proceeding.
General facts about the case ok
can make a statement to protect a client from the prejudicial effect of publicity that was not initiated by the attorney or client.
special prosecutor duties
o A prosecutor must not prosecute a charge that he knows is not supported by probable cause.
o A prosecutor is required to timely disclose all exculpatory evidence and information that tends
to disprove guilt or mitigates the offenses.
o New evidence: The prosecutor must disclose any new, credible evidence creating a likelihood
that a convicted defendant did not commit the offense.
extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused, and exercise reasonable to prevent other persons assisting or associated with the prosecutor from making such statements.
take special precautions to prevent and reverse conviction of innocent Ds
advertising
o A lawyer must not make false or materially misleading statements about himself or hisservices.
o Advertising Requirements:
The name and address of the attorney must be included.
Attorneys can state that they specialize in an area of law.
A lawyer may not state/imply she is a certified specialist in an area of law unless she is actually certified.
Under the Model Rules, instead of the “address,” the advertisement must include the “contact information” of at least one lawyer or firm responsible for its content, which can include a website address, a telephone number, an e-mail address, or a physical office location.
CA: —ads cannot guarantee the outcome of a legal matter, promise immediate cash or quick settlements, or offer representation on a contingent basis unless it also indicates whether C will be responsible for costs if no recovery is obtained
solicitation
CA: Solicitation of prospective clients in person, by live telephone, or by real-time electronic contact
is prohibited when a significant motive for the lawyer’s action is the lawyer’s pecuniary gain,
unless the person contacted is:
A lawyer;
A family member;
A close personal friend; or
Has a prior professional relationship with the soliciting lawyer.
The Model Rules do not prohibit real-time electronic contact and they contain an additional exception for solicitation of a person who routinely uses for business purposes the type of legal services offered by the lawyer. Attorneys are permitted to send general professional announcements to people in the area. General announcements by lawyers are not considered solicitations of professional employment.
reporting misconduct
Model Rules: A lawyer is required to report misconduct by another attorney when the lawyer
has actual knowledge of the misconduct.
The duty is limited to misconduct relating to the attorney’s honesty or professional fitness.
CA: The California Rules now require a lawyer to report misconduct
of another lawyer when the lawyer:
-knows of credible evidence that another lawyer has engaged in misconduct
-that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.
imputation of conflict
if one lawyer in a firm has a conflict, that conflict is imputed to the rest of the lawyers in the firm unless that lawyer is screened
screening
Under the MR, any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if
(i) the disqualified lawyer is timely screened and is apportioned no part of the fee,
(ii) written notice is given to any affected former client , and
(iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
Under the CA RPC, any conflict of interest that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if
(i) the prohibited lawyer did not substantially participate in the same or a substantially related matter,
(ii) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee, and
(iii) written notice is given to any affected former client to enable the former client to ascertain compliance with the ethics rules.
duty of fairness to opposing party/counsel: witnesses
Witnesses:
* A lawyer generally may not request that a witness refrain from speaking to another party.
* A lawyer may pay a non-expert witness reasonable expenses related to testifying.
* An expert witness may be paid a reasonable rate and compensated for reasonable expenses.
* CA Rules: A lawyer may not pay/offer to pay a witness contingent on his/her testimony or the outcome of the case, but a lawyer may advance witness expenses and expert witness fees.
subordinate lawyers
A subordinate lawyer is bound by the rules, notwithstanding a directive by a supervisor,
unless obeying a supervisor’s reasonable resolution to an
arguable question of professional duty.
o The subordinate lawyer has a responsibility to undertake her own analysis of the law
applicable to the supervising lawyer’s conduct.
exceptions to fee splitting
(i) a non-lawyer paid over a reasonable period after the death of the lawyer according to the lawyer’s law firm operating agreement
(ii) a lawyer who purchases the practice of a deceased, disabled, or missing lawyer and pays lawyer’s estate or the representative;
(iii) law-firm personnel though a compensation or retirement plan
(iv) a lawyer who shares court-awarded legal fees with a nonprofit organization that employed, retrained, or recommended employment of the lawyer
PACS = purchase practice; after death of lawyer; comp/retirement plan; share w/ nonprofit
runners and cappers
Lawyers can’t employ agents to monitor accidents and other events likely to produce legal work and to solicit business for the lawyer
CA: criminal violation, and any such contract is specifically void as illegal in CA
Exceptions: pro bono, legal insurance, lawyer referral service or legal service plan
ex parte communications with judge
not permitted to communicate ex parte with any person serving in an official capacity in the proceeding, such as a judge.
unless: involving logistical matters and not the merits and emergency communications authorized by law or court order are permitted.
govt conflicts of interest
Government lawyers
A former government lawyer may NOT represent a client in a matter in which the lawyer
participated personally and substantially
Unless the government agency gives its informed consent
x ABA: informed consent, confirmed in writing
x CA: informed written consent
assist/induce/ratify
A lawyer may NOT violate or knowingly assist in or induce a violation of the rules.
cannot ratify misconduct of another
Duty When Joining a Partnership or Corporation
Partnership: A lawyer may NOT form a partnership with a non lawyer if
ANY of the partnership activities constitute the practice of law.
Professional Corporation: A lawyer may NOT practice law in a professional corporation or
for-profit association, if a non-lawyer has any ownership interest, a position of
management, or has the right to control the lawyer’s professional
judgment.
noncompetes
lawyers can’t enter into these
sale of law practice
A sale is permitted when:
1. The sale is of all or substantially all of the lawyer’s practice (ABA: or
“practice area”);
2. The lawyer exercises competence in finding a buyer;
3. Client fees are not increased as a result of the sale; and
4.written notice to clients is provided.
o ABA only: the lawyer must cease to practice in the state.
o Consent of a client is presumed if no objection is made within 90 days.
expedite
MR—L must make reasonable efforts to expedite litigation consistent with the interests of C (course of action must be for a substantial purpose other than delay)
CA—no specific duty to expedite litigation; instead, L must not use means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense
targeted mailings
CA: L may issue written, recorded, or electronic communications that include the word “Advertisement” or words of similar import on outside of mailing envelopes, and at the beginning and ending of all recorded or electronic communications
(MR) no similar requirement
quantum meruit
contingent fee but rlsp terminated early then recover in quantum meruit, a fee reasonable for the services
