Rules Flashcards

Question

Lawyer as Advisor (2.1)

Answer 1

CA 2.1: In representing a client, a lawyer shall exercise independent professional judgment and render **candid advice.** ABA 2.1: In representing a client, a lawyer shall exercise independent professional judgement and render candid advice. (+) In rendering advice, a lawyer may refer not only to law but to other ***considerations such as moral, economic, social and political factors, that may be relevant to the client's situation***. Note: CA does not include factors.

Answer 2

A lawyer cannot participate in offering or making any type of agreement (partnership, shareholder, employment) that restricts the right of a lawyer to practice after termination of the relationship, except an agreement that concerns benefits upon retirement. A lawyer also can't make an agreement in connection with a settlement of a client controversy that restricts a lawyer's right to practice. CA 5.6 includes: A lawyer cannot participate in offering or making an agreement which precludes reporting a violation of these Rules.

Answer 3

ABA 1.6: A lawyer shall not reveal info relating to the representation of a client unless the client gives informed consent. A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or unauthorized access to info relating to representation of the client. A lawyer may reveal client information to the extent the lawyer reasonably believes it's necessary to: (1) Prevent death or substantial bodily harm (2) Prevent client from committing a crime or fraud (3) Prevent or mitigate substantial injury to financial interests of property of another (4) TO secure legal advice about lawyer's compliance with these rules (5) Establish a clim or defense o behalf of the lawyer in controversy (6) To comply with other law or court order Note: More exceptions apply

Answer 4

A lawyer shall not reveal info protected form disclosure by § 6068. A lawyer may but is not required to reveal confidential, private info to the extent that the lawyer reasonably believes is likely to result in death or substantial bodily injury to an individual. Note: CA allows a breach of confidentiality only to prevent a criminal act that the lawyer reasonably believes is likely to result in death/substantial bodily harm to an individual.

Answer 5

If you have two or more clients in the same matter you have a conflict of interest (either actual or potential) and will need informed written consent for each affected client that advices client of the "***actual and reasonably foreseeable adverse consequences***"

Answer 6

ABA 1.7: A lawyer shall not represent a client if the representation involves a concurrent conflict of interest, meaning the representation of one client is directly adverse to another client or there is a significant risk the the representation will materially limit the lawyer's responsibilities to another client. A lawyer may represent a client the lawyer reasonably believes: (1) They are able to provide competent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve a claim by one client against another client represented by the same lawyer in the litigation; (4) **each affect client gives informed written consent.** CA 1.6: A lawyer shall not represent a client if the representation is directly averse to another client in the same or separate matter without informed written consent. A lawyer shall not represent a client if there is a significant risk the lawyer's representation of the client will be materially limited by the lawyer's responsibilities or relationship to another client, former client, or a third person. Even if risk is not present, a lawyer shall not represent a client without **written disclosure** of the relationship to the client. **Note**: Adverse relationships need informed in ABA & written disclosure in CA

Answer 7

`ABA 1.8(g): A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or in a criminal case an aggregated agreement as to guilty or nolo contender please, **unless each client gives gives informed consent**, in a writing signed by the client. The lawyer's disclosure shall include the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement. CA 1.8.7: Same as ABA but in CA we the Rule does not apply to class actions

Answer 8

In the case in which a lawyer is employed or retained by an organization, for representation purposes, the client is the organization itself acting through its authorized directors, officers, employees, shareholders, or other constituents. If a lawyer is representing an organization that a constituent knows is acting in violation of organization or is **likely to result in substantial injury to the organization**, the lawyer shall proceed as is reasonably necessary in the best lawful interest of the organization. The lawyer shall refer the matter to higher authority within the organization to the highest authority that can act on behalf of the the organization. CA 1.13: The lawyer shall not reveal info protected by § 6068 (CA must not go out of org) ABA 1.13: If the lawyer reasonably believes that the violation is reasonably certain to result in substantial injury to the organization, then the lawyer may reveal information relating to the representation whether or not Rule 1.6 permits such disclosure, but only if and to the extent the lawyer reasonably necessary to prevent substantial injury to the organization. (ABA can go out of org and allows attorney to reveal confidential info if corporate client refuses to address a violation of the law.)

Answer 9

A lawyer **shall not represent** a a client or shall withdraw from representing a client if: 1. The lawyer knows or reasonably should know that the client is bringing an action without probable cause and for purpose of harassing/injuring a person 2. Representation will result in violation of these rules 3. Lawyer's mental/physical condition renders representation ineffective 4. The client discharges the lawyer A lawyer **may withdraw** from representing a client if: 1. Client insists of claim/defense/position that is not warranted under existing law or can't be supported by a good faith argument 2. Client seeks to pursue a criminal or fraudulent course of conduct or insists that the lawyer pursue a course of criminal/fraudulent conduct 3. Client renders it unreasonably difficult for lawyer to carry out effective representation 4. Client breaches a material term of an agreement 5. Client knowingly/freely assents to termination of representation 6. Lawyer's physical/mental condition renders it difficult to carry out representation effectively If permission for termination of representation if required by the rules of a tribunal, a lawyer shall not terminate representation without the tribunal's permission.

Answer 10

CA 1.16: A lawyer shall not terminate representation until the lawyer has taken ***reaonsable steps to avoid reasonably foreseeable prejudice to the rights of the client***, such as giving the client sufficient notice to retain other counsel. **Note**: CA is more strict, may not withdraw at all, even with legit grounds until steps taken. Upon termination, at the request of the client the lawyer shall release all client materials and property and shall refund any part of a fee or expense paid in advance that the lawyer has not earned or incurred.

Answer 11

Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrounding papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. Withdrawal requires: 1. Client permission 2. Court Permission 1. Judges vested with discretion to permit or deny withdrawal (near trial = deal breaker) 3. No prejudice to client 1. (Duty to not cause prejudice = must try case for free)

Answer 12

When assessing conflicts = **Substantial relationship test** = if there exists a substantial relationship, the presumption is that the attorney received confidences from the former client * Whether there is a substantial relationship between subject matter of current representation and the former engagement * Whether he lawyer learned confidential info (lawyer's involvement work, and participation)

Answer 13

* A lawyer who has formerly represented a client in a matter shall not represent another person in **the same or substantially related matter** to which that person's interests are ***materially adverse*** to the interests of the former client unless the former client gives informed written consent * A lawyer shall not knowingly represent a person in the same or substantially related matter in which a ***firm the lawyer was formerly associated with had previously represented*** a client whose interest are materially adverse to that person * A lawyer who's formerly represented a client in a mater or whose firm has, cannot use info acquired through client confidentiality to disadvantage the former client or reveal info that was gained through representation of a former client

Answer 14

It is the duty of the attorney to do **all of the following:** 1. to counsel or maintain actions, proceedings, or defenses that appear legal/just 2. to **maintain the causes confided to him or her** and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law 3. To **maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.** An attorney may, but is not required to, reveal the confidential information relating to the representation of a client to the tent that the attorney reasonably believes the disclosure is necessary to prevent a criminal act that the attorney reasonably believes is likely to result in death of, or substantial bodily harm to, an individual. 4. To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice o the cause with which he or she is charged 5. Not to encourage either the commencement or the continuance of an action or proceeding from any corrupt notice of passion or interest 1. SCOCA has held that an attorney may be liable for malicious prosecution for continuing to prosecute after discovery of no probable cause 6. **NEVER** to reject, for any consideration personal to himself or herself, the **cause of the defenseless or the oppressed** 7. To cooperate and participate in any disciplinary investigation or other regulatory or disciplinary proceeding pending against himself or herself 8. To respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services

Answer 15

1. To report to the State Bar, in wiring, within 30 days of the time the attorney has knowledge of any of the following: 1. The filing of three or more **lawsuits against the attorney** in a 12-month period for malpractice or other wrongful conduct committed in a professional capacity 2. The of **judgement against the attorney** in a civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity 3. The imposition of **judicial sanctions against the attorney,** except for sanctions for failure to make discovery or monetary sanctions of less than 1K 4. The bringing of an indictment or information **charging a felony against the attorney** 5. The **conviction of the attorney** including any verdict of guilty or plea of guilt or no contest, of a felony, or a misdemeanor committed int he course of the practice of the law, or in a manner in which a client of the attorney was the victim or a necessary element of which as determined by the statutory or common law definition of the misdemeanor, involves **improper conduct of a attorney**, including dishonesty or other moral turpitude, or an attempt or a conspiracy or solicitation of another to commit a felony or a misdemeanor of that type. (**Note: Felony and you're out**) 6. The imposition of **discipline against the attorney** by a professional or occupation disciplinary agency or licensing board, whether in California or elsewhere 1. Applies to any license or occupation 2. Might not automatically report to state but the licensing state may ask 7. **Reversal of judgement** in a. proceeding based whole in part upon misconduct, grossly incompetent representation, or willful misrepresentation by an attorney. 1. Gross incompetence can be late filings, etc.

Answer 16

It is professional misconduct for a lawyer to: * (d) engage in misconduct that is prejudicial to the administration of justice * a catch all * (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, martial status or socioeconomic status in conduct related to the practice of law.

Answer 17

More inclusive than ABA In representing a client, a lawyer shall not unlawfully harass or discriminate against persons on the basis of any protected characteristic or retaliate against persons. A lawyer in a law firm shall discriminate/harass or knowingly permit discrimination /harassment. A lawyer shall not unlawfully refuse to hire or employe a person on. the basis fo a protected characteristic. * “Protected characteristic” means race, religious creed, color, national origin, ancestry, physical disability, **mental disability, medical condition, genetic information,** martial status, sex, gender, gender identity, **gender expression**, sexual orientation, age, military and veteran status. A lawyer who is subject of an investigation or court proceeding alleging violation of this rule must notify the State Bar of any criminal/civil/admin action and provide a copy of any disciplinary charge issued.

Answer 18

CA does not have this rule. A lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises ***a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer***, shall inform the appropriate professional authority. Note: may raise issue of fitness/competence

Answer 19

A lawyer shall not: 1. make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer 1. **Note**: Lawyer may never participate in fraud of court and never knowingly present perjury 2. Fail to disclose legal authority in the controlling jurisdiction known to be adverse to the position of the client and not disclosed by opposing counsel; or 3. Offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called by the lawyer has offered material evidence and the lawyer comes to know of its falsity: 1. ABA 3.3: the lawyer shall take reasonable remedial measures, including disclosure to tribunal, if necessary. 2. CA 3.3: The lawyer shall take reasonable remedial measures, including if necessary, disclosure to the tribunal, unless disclosure is prohibited by § 6068 1. **NOTE:** CA does not allow you to violate confidentiality! Imposes a duty of confidentiality on the lawyer dealing with a “lying client” 4. If a lawyer knows their client is engaging or intends to engage in criminal or fraudulent conduct, the lawyer shall: 1. ABA 3.3: take reasonable remedial measures, including disclosure to the tribunal, if necessary, 2. CA 3.3: “ ” to the extent permitted by § 6068

Answer 20

A lawyer shall not knowingly make a false statement of material fact or law to a third person or fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, ***unless disclosure is prohibited by § 6068***

Answer 21

A lawyer shall not seek to influence a judge, juror, or prospect juror or other official or communicate with such a person during the proceeding unless authorized to do so by law or court order. A lawyer shall not engage in ***conduct intended to disrupt a tribunal***. * Look for showing of “***prejudice and disruption or interference”*** * **Clean up client OK, switching client or misrepresenting physical capabilities = false/deceitful**

Answer 22

A lawyer shall not take a statement about the qualifications or integrity of a judge, legal officer, or candidate for elections or appointment to a judicial or legal office that the lawyer knows to be false or recklessly disregards its truth. * Critique of judge is punishable if capable of objective verification

Answer 23

A lawyer who is participating/has participated in an investigation or litigation shall not make a statement that the lawyer knows or reasonably should know will be disseminated by public communication and will have a ***substantial likelihood of materially prejudicing an adjudicative proceeding*** in the matter * Standard = “***substantial likelihood of material prejudice***” * Only punish speech that creates a danger of imminent and substantial harm A lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from substantial undue prejudice from recent publicity not initiated by them. (Mudslinging Exception)

Answer 24

A lawyer ***shall not make a false or misleading communication about the lawyer or the lawyer's services***. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact that makes the statement as a whole materially misleading. * Standard: Advertisement cannot be false, misleading or deceptive * “Presumptions” of misleading communication: Express guarantee, truthful statements that are misleading, false testimonials (real person who has used service) * Prohibits false depictions of people and events and promising results * Ex: actors portrayed as client or atty : can use actors, but must have clear disclaimer * Ex: Promising results or implying ability to obtain results

Answer 25

A lawyer shall not solicit employment in-person or by phone when motive is pecuniary gain UNLESS: 1. person contacted is a lawyer or has a close, personal, or prior professional relationship with the lawyer. Any written or electronic communication from a lawyer soliciting employment from any person in need of legal services in a particular matter, shall include the word “advertisement” (ex. allow in class actions) **Solicitation:** Oral or written targeted communication initiated by or on behalf of a lawyer that is directed to a specific person and offers or can be understood to offering to provide legal services

Answer 26

A lawyer cannot state that he/she is a certified specialist in a particular field of law, unless the lawyer actually certified as a specialist. A lawyer may communicate that the lawyer does practice in particular fields of law or specializes in a particular practice.

Answer 27

A lawyer cannot use a firm name, trade name, or other professional designation that designates, states, or implies a relationship with a government agency or with a public or charitable legal services organization. A lawyer shall not state or imply that the lawyer practices in or has a professionally relationship with a law firm or other organizations unless that is the fact.

Answer 28

A lawyer or law firm shall not accept a government legal engagement or appointment by a judge if the lawyer or law firm makes a political contribution or solicits political contributions for the purpose of obtaining or being considered for that type of legal engagement or appointment **Note:** 7.6 not adopted in CA

Answer 29

The prosecutor in a criminal case shall not prosecute a charge that the prosecutor knows is not supported by **probable cause**. * ABA 3.8: A prosecutor shall disclose to the defense ***all evidence*** or info known to the prosecutor that tends ot negate the guilt of the accused or mitigate the offense * CA 3.8: A prosecutor shall make timely disclosure to the defense of **all evidence** or info known to the prosecutor that the prosecutor ***knows or reasonably*** should know tends to negate guilt of the accused mitigate the offense, or mitigate the sentence. * Not just material ANY evidence/info that cases significant doubt * A prosecutor shall exercise reasonable care to prevent people under their supervision or directoion (investigators, law enforcement personnel, employees) from making an extrajudicial statement that has a substantial likelihood to heighten public condemnation of the accused. * Can't have others do duty work * When new, credible material evidence that tends to negate a convicted defendant's guilt, a prosecutor shall promptly disclose that evidence to the appropriate court/authority or undertake further investigation * When prosecutor knows of clear/convincing evidence that negates defendant's guilt, the prosecutor shall ***seek to remedy the conviction*** (rare, no prosecutor would ever)

Answer 30

ABA 4.2: In representing a client a lawyer shall not communicate with a person the lawyer knows to be represented by another lawyer, unless the lawyer has consent of the other lawyer or is authorized to do so by law or court order (Can't speak to party represented by counsel without consent) CA 4.2: In the case of a represented corporation, partnership, association, or other private or governmental organization, this rule prohibits communications with: (1) A current officer, director, partner, or managing agent of the organization; or (2) A current employee, member agent or other constituent of the organization **Note:** CA makes it clear that this rule applies to organizations

Answer 31

In communicating on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. If the lawyer knows that the unrepresented person incorrectly believes that the lawyer is disinterested, the lawyer shall make reasonable efforts to correct the misunderstanding. A lawyer shall not seek to obtain privileged or other confidential info which the lawyer is not otherwise entitled to receive. * Rule is intended to protect unrepresented persons whatever their interests, from being misled when communicating with a lawyer who is acting for a client.

Answer 32

When a lawyer serves as a third-party neutral and assists two or more people, who are not clients, reach a dispute resolution, the lawyer shall inform the parties that the lawyer is not representing them. The lawyer should explain the different between their role as a third-party neutral and one that represents their clients. * Mediators have to make their role clear to the parties

Answer 33

A partner or lawyer who has a comparable managerial authority in a law firm, shall make reasonable efforts to ensure that all lawyer in the firm conform to the Rules of Professional Conduct. A lawyer can be responsible for another lawyer's violation of the Rules if the lawyer orders, knows of the specific conduct ratifies the conduct, or knows of the conduct at a time when its consequences could have been avoided or mitigated but failed to take reasonable remedial action.

Answer 34

A lawyer is bound by the Rules of Professional Conduct. A subordinate lawyer does not violate the rules if the lawyer acts in accordance with a supervisory lawyers' ***reasonable resolution of an arguable question of professional duty*** * “Shield” and duty to report ethical conduct applies only to “arguable questions” meaning someone has to decide course of conduct * If questions can only be reasonably answered one way, the duty of both lawyers is clear and they are equally responsible for fulfilling it.

Answer 35

With respect to non-lawyers employed, retained, or associated with a lawyer: A partner, lawyer who has managerial authority, or a lawyer having direct supervisory authority over a non lawyer should give reasonable assurances that the non lawyer's conduct is compatible with the professional obligations of the lawyer. * Non-lawyers = assistants, paralegals, support staff