Rule Statements

Question 1

Formation of Lawyer-Client Relationship

Answer 1

In general, there is no duty to accept representation. However, there is a duty to reject if it would violate an ethical rule. The attorney-client relationship begins when the client reasonably believes the relationship exists, and no formal writing is required.

Question 2

Reasonable Fees

Answer 2

A lawyer must charge fees that are reasonable under the circumstances. Lawyer fees are regulated for reasonableness based on the amount and nature of the fees. Only contingent fee arrangements must be in writing, but all rate or fee arrangements must be communicated to the client before, or within a reasonable time after, the relationship commences.

Question 3

Lawyer-Client Privilege

Answer 3

Confidential communication between a client and his lawyer is privileged. The client must intend for communication to be confidential, and the communication must be for purpose of seeking legal advice and representation. The client holds the privilege, and the lawyer must assert the privilege on his client’s behalf. Finally, the privilege is indefinite, and survives the client’s death.

Question 4

Work Product

Answer 4

In California, a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. Other lawyer work product is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim/defense or will result in an injustice.

Question 5

Duty of Confidentiality

Answer 5

A lawyer is prohibited from disclosing information relating to the representation of a client, unless the disclosure is authorized by the informed consent of the client or impliedly authorized in order to carry out the representation. A lawyer must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure to unintended recipients.

Under the Model Rules, the ethical duty of confidentiality applies not only to confidential client communications, but also to all information relating to the representation, regardless of the source, including lawyer observations and third-party communications.

Question 6

Conflict of Interest - Lawyer’s Personal Interest

Answer 6

In general, a lawyer must not represent a client if representation may be materially limited by the lawyer’s own interests, unless lawyer reasonably believes he can provide competent and diligent representation to the affected client, the representation is not prohibited by law, and the affected client gives informed written consent.

Question 7

Conflicting Interests Between Current Clients

Answer 7

Under the Model Rules, lawyers cannot represent clients with directly adverse interests unless the lawyer reasonably believes he can provide competent and diligent representation, the representation is not prohibited by law, the client isn’t asserting a claim against another client in the same litigation, and the clients give informed written consent.

In California, a lawyer needs informed written consent to represent clients with potential or actual conflicts, to represent a current client and take on a new client with interests adverse to the current client, or to accept a new client because representation of the current client leads to confidential information material to the new client’s matter.

Unlike the Model Rules, the California rules do not require that the lawyer reasonably believe that he will be able to provide competent and diligent representation to each affected client. California requires only informed written consent from each client. In addition, the California rules apply to both actual and potential conflicts. The Model Rules apply only to actual conflicts.

Question 8

Conflicting Interests Between Current and Former Clients

Answer 8

Under the Model Rules, a lawyer cannot represent a new client in the same or substantially related matter as a former client if the new client’s interests are materially adverse to the former client’s interests, unless the former client gives informed written consent.
In California, a lawyer is not permitted, without the informed written consent of the former client, to accept employment adverse to the former client in which, by reason of the representation of the former client, the lawyer has obtained confidential information material to the employment.

Question 9

Conflicting Interests - Prospective Clients

Answer 9

A lawyer cannot represent clients with materially adverse interests in the same or substantially related matter if the lawyer received information from the prospective client that could be significantly harmful to the current client unless both clients give informed written consent and there is limited exposure, timely screening, and notice to the prospective client.

Question 10

Competence

Answer 10

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.
In California, a lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. Competence is the application of the diligence, learning and skill, and mental, emotional, and physical ability reasonably necessary for the performance of such service. The California rule regarding professional competence also includes the duty to supervise.

Question 11

Diligence

Answer 11

A lawyer must be dedicated and committed to a client’s interests despite inconvenience or obstruction, and must control his workload, act with reasonable promptness, and pursue all matters to completion.

Question 12

Conduct in the course of litigation - duties

Answer 12

Duty to avoid frivolous claims - MR v CA
Duty to expedite litigation
Duty of candor to the tribunal
Duty of fairness to opposing counsel - access to evidence, inducement to witnesses

Question 13

Advertising

Answer 13

A lawyer must not make false or materially misleading statements about himself or his services. The Model Rules hold that a communication is misleading if it contains a material misrepresentation of law or fact or omits a fact necessary to make the statement as a whole not materially misleading.

Question 14

Solicitation

Answer 14

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 or has a family, close personal, or prior professional relationship with the soliciting lawyer.

Question 15

Misconduct Committed by Others

Answer 15

In general, a lawyer is subject to discipline for misconduct by others if the lawyer orders the misconduct; ratifies it with knowledge of the specific conduct; or has direct supervisory authority over another lawyer or law-related employee, if he knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

Question 16

Professional Competence

Answer 16

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 California rules requires that a lawyer not intentionally, recklessly, or repeatedly fail to perform legal services with competence and defines “competence” in any legal service as the application of the (i) diligence, (ii) learning and skill, and (iii) mental, emotional, and physical ability reasonably necessary for the performance of such service.

Question 17

Duty of Loyalty

Answer 17

Lawyers owe clients a basic duty of loyalty and independent professional judgment. When a lawyer’s independent professional judgment is potentially compromised by a non-client interest (i.e., a conflict of interest exists), 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.

Question 18

Duty to Avoid Frivolous Claims

Answer 18

The Model Rules prohibit lawyers from bringing or defending a proceeding, or asserting or opposing an issue in a proceeding, unless there is a basis in law and fact for doing so that is not frivolous. A good-faith argument for an extension, modification, or reversal of existing law is not frivolous. Under the California rules, a lawyer must not seek, accept, or continue employment if she knows or should know that the objective of such employment is to 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.

Question 19

Reporting Misconduct

Answer 19

The Model Rules require a lawyer to report misconduct by another lawyer to the appropriate professional authority (e.g., disciplinary agency) when the lawyer has actual knowledge of the misconduct. The duty to report is limited to “material matters of clear and weighty importance” that raise a substantial question as to the lawyer’s honesty or professional fitness. A lawyer who fails to report misconduct by another lawyer will be subject to discipline.

California has no ethics rule requiring a lawyer to report misconduct by another lawyer.

Question 20

Threatening Charges (CA)

Answer 20

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. There is no corresponding rule in the Model Rules.

Question 21

Duty of Fairness

Answer 21

A lawyer has a duty of fairness to both the court and to her adversary.

Question 22

Contingency Fee Agreement

Answer 22

Attorneys may charge a fee contingent on the outcome of the case. The Model Rules prohibit contingent fees in criminal cases and in domestic relations cases when the fee is contingent on obtaining a divorce or on the amount of support recovered. The California rules do not prohibit contingent fees in domestic or criminal matters.

Question 23

Financial Assistance - Model Rules

Answer 23

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 (including the expenses of medical examination and the costs of obtaining and presenting evidence) to the client. Although the client usually must remain ultimately liable for those costs, repayment may be made contingent on the outcome of the case. Lawyers representing indigent clients may advance court costs and litigation expenses regardless of whether the funds will be repaid.

Question 24

Financial Assistance - CA

Answer 24

In California, a lawyer is not permitted to directly or indirectly pay or agree to pay the personal or business expenses of a prospective or existing client. Thus, while the Model Rules limit financial assistance only in the context of litigation, the CA RPC limits financial assistance generally. A lawyer is permitted, with the client’s consent, to pay or agree to pay such expenses to third persons from funds collected or to be collected for the client as a result of the representation.

The lawyer may also, after being hired, lend money to the client on the client’s promise in writing to repay the loan.

In addition, the lawyer may advance the costs of prosecuting or defending a claim or action or otherwise protecting or promoting the client’s interests, the repayment of which may be contingent on the outcome of the matter. Costs must be limited to reasonable expenses of litigation or reasonable expenses in preparation for litigation or in providing legal services.

Question 25

Duty to Communicate with Client

Answer 25

Lawyers have a duty to communicate with clients, to keep them informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.

Question 26

Sexual Relations

Answer 26

The Model Rules prohibit a lawyer from engaging in sexual relations with a client, unless a consensual sexual relationship existed between the lawyer and client when the lawyer-client relationship commenced. The rule does not permit the client to waive the conflict through informed consent.

In California, a lawyer must not: (i) require or demand sexual relations with a client incident to or as a condition of any professional representation; (ii) employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or (iii) continue representation of a client with whom the lawyer has sexual relations if such sexual relations cause the lawyer to perform legal services incompetently. The rules do not apply to ongoing consensual sexual relationships that predate the lawyer-client relationship.

Question 27

Decisions Made by Client

Answer 27

The client decides the objectives and goals of the representation. As the client’s agent, the lawyer must abide by those decisions (within some constraints) but has the authority to determine how best to achieve those objectives.

Question 28

Maintaining the Integrity of the Profession

Answer 28

The state has an interest in maintaining the integrity of the legal profession to protect the public from incompetent or unscrupulous practitioners.

Question 29

Payment from Third Party

Answer 29

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.

Question 30

Trial Publicity

Answer 30

A lawyer who is participating or has participated in the investigation or litigation of a matter is not permitted to make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter. An exception to this rule is that a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity that was not initiated by the lawyer or the client. The statement must be limited to such information as is necessary to mitigate the recent adverse publicity.

Question 31

Duty of Fairness - Access to Evidence

Answer 31

A lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value. A lawyer must also not counsel or assist another person to do any such act. This rule applies to evidentiary material generally, including computerized information.

In California, a lawyer is required to not suppress any evidence that the lawyer or the lawyer’s client has a legal obligation to reveal or to produce.

Question 32

Duty of Fairness - Requesting that a Person Not Give Relevant Information to Another Party

Answer 32

A lawyer must not request a person other than a client to refrain from voluntarily giving relevant information to another party, unless (i) the person is a relative or an employee or other agent of the client and (ii) the lawyer reasonably believes that the person’s interests will not be adversely affected.

Question 33

Use of False Evidence

Answer 33

A lawyer is prohibited from knowingly offering false evidence and may refuse to admit evidence that she reasonably believes is false. The term “knows” means actual knowledge of the fact, which may be inferred from circumstances. California requires that a lawyer employ only those means consistent with truth and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

Question 34

Special Responsibilities for the Prosecutor

Answer 34

The prosecutor is not only an advocate, but also a minister of justice. The prosecutor’s responsibilities include the obligation to lay charges only when they are supported by probable cause, to see that the defendant is accorded all of his constitutional due process rights, to seek a guilty verdict based on the evidence and a showing of proof beyond a reasonable doubt, and to take special precautions to prevent and reverse the conviction of innocent defendants.

Question 35

Duties of Prosecutor - No Prosecution without Probable Cause

Answer 35

A prosecutor must not prosecute a charge that the prosecutor knows is not supported by probable cause. Probable cause is facts sufficient to lead a man of ordinary caution to believe that a crime was committed and the defendant was the one who committed it.

Question 36

Duties of Prosecutor - Disclosure of Evidence that May Help the Defendant

Answer 36

A prosecutor is required to timely disclose all known exculpatory evidence or information that tends to disprove the guilt of the accused or mitigates the offense. Exculpatory evidence is any evidence that weighs in favor of acquitting a criminal defendant.