Rules Flashcards
Business transactions with client
Under ABA and CA rules, an attorney may not enter into business transactions with a client or knowingly
acquire an ownership interest or other pecuniary interest adverse to the client, unless:
(1) The terms are fair and reasonable to the client
(2) Terms are fully disclosed in a reasonably understandable writing
(3) Client has an opportunity to seek the advice of outside counsel, and
(4) The client gives informed, written consent.
Board of Director Service
Board of director service - There is no automatic bar for lawyers serving on the board of
directors but it is strongly discouraged because it likely compromises the duty of competence
and duty of loyalty.
o Under CA rules, written disclosure is required for board service
Gifts
Under ABA rules, an attorney is prohibited from soliciting substantial gifts or drafting a legal
instrument for a client who is not a close relative if it provides a substantial gift to the attorney.
Under CA rules, preparation of a legal instrument that provides a gift to the lawyer is permitted
if not induced
DUTY OF LOYALTY
Under ABA and CA, A lawyer owes a duty of loyalty to act solely to further the client’s
best interest. The lawyer may not sacrifice the client’s interests for his own or those of a
third party, as such the lawyer must avoid any representation that poses a conflict of
interest.
Actual Conflict of Interest
An actual conflict arises when the interest of the attorney, another client, or third party
materially limits or is adverse to loyal representation. Attorney must not undertake
representation UNLESS:
Clients – representation does not involve a claim of one client against
another client
o CA – UNLESS joint clients are insurance provider and the insured
(but watch for potential conflict forcing withdrawal)
Objectively Reasonable – lawyer reasonably believes that he can
competently and diligently represent each affected client.
Prohibited – representation is not prohibited by law
Informed Consent – each affected client gives informed written consent.
Potential Conflict of Interest
A Potential conflict exists when the lawyer suspects that an actual conflict may exist, but
his or her representation has not yet been materially limited.
Imputed Disqualification
Conflict of interests between attorney and client is imputed to all members of attorney’s
firm except: 1) gov’t service – conflict arises from previous gov’t employment, 2)
personal interest – conflict arises from purely personal interest that will not inhibit other
lawyers in the firm from representing client competently and diligently; or 3) when the
lawyer’s work for an adverse party was at a previous firm AND lawyer is properly
screened.
CA – If attorney is imputed conflict, he may be disqualified from handling the litigation.
Screening of DQ’d L is OK if 1) timely screened from any participation in the matter; 2)
apportioned no part in fee from the matter; 3) written notice is promptly given to any
affected former client describing the screening L’s prior representation; and 4) periodic
certifications of compliance w/ these conditions.
- Remedies: 1) refuse to take the case; 2) advise multiple clients to get
separate counsel; or 3) withdraw.
Non-consentable conflicts
If a reasonable lawyer looking at the facts would have advised an affected client not to
consent, then the conflict is unconscionable and client conflict consent will not resolve
the conflict.
CONFLICT BETWEEN CLIENTS
Generally, you may represent clients w/ potential conflicts w/ proper consent, but it is rarely proper if their interests are in actual conflict.
Opposing sides in different matter – A representation adverse to a currentclient in another matter requires ALL clients to consent.
CA absolutely prohibits attorney from taking case adverse to client he is currently representing regardless of relationship of cases.
Two clients with inconsistent positions – Attorney can represent opposing positions on different appeals but if either would be disadvantaged, attorney must
withdraw from representation.
Multiple clients in same matter – (insured and insurance company; corporation and its directors, officers, employees, or shareholders; spouses in divorce) –
Attorney can represent with informed consent BUT when actual conflict of interest arises (learns harmful info), attorney must withdraw from both and
advise parties to seek separate counsel
Former Clients
Generally, a lawyer who has formerly represented a client in a matter
shall not represent a new client in the same or substantially related matter, in which that
new client’s interests are materially adverse to the interests of the former client UNLESS
the former client gives informed written consent.
Type of work:
Limited Partnerships (likely OK to rep) – Test: do the representations overlap in
function, scope or information?
Leaving Firm (if you leave, can new firm rep?) – Imputed DQ applies to former
firm if 1) the matters are substantially related or the same and (2) any
remaining lawyer has confidential material information. (Imputed DQ unless
timely and effective screened, received no direct part of fee, former client
received notice and periodic certification of compliance with these conditions)
Former Government Lawyers
Former government lawyers cannot later represent a
client in connection with a matter in which participated personally and substantially as a
government agent. Other members of the firm can take representation if: 1) the former
government lawyer is screened off, 2) does not share in the fee, AND 3) Gov’t employer
is informed of representation.
CA bars prosecutors from later working on the defense of the same case
in private practice.
Limiting malpractice liability
attorney is prohibited from making agreements limits
lawyer’s malpractice liability unless client is independently represented in making the
agreement. If client later does make a malpractice claim against you, you can only settle
after written advice to client to consult an outside lawyer fist.
CA – L cannot limit malpractice liability
Loans/advances
ABA forbids financial assistance except 1) litigation expenses for
indigent clients, and 2) advance litigation expenses in contingency cases.
CA prohibits attorney from promising to prospective client’s debts but
permits loan to a client in all matters for any purpose without written loan
agreement.
Lawyer as witness in jury trial
ABA bars lawyer appearance as counsel and witness
in the same trial unless: (1) lawyer testimony solely for uncontested matter, (2) lawyer’s
testimony will concern only nature and value of legal services rendered, AND (3) if
lawyer distinctive value to the case means withdrawal would result in substantial
hardship to client.
CA: Attorney can testify in a bench trial and a jury trial with the client’s
consent
Lawyers in Relationship
Lawyers must obtain written consent if they are representing different clients in the same
or substantially related matters if they are: ABA & CA – blood relatives or married.
CA – a lawyer is the client of another, they live together, or have an
intimate personal relationship.
Sex with Client
ABA – Prohibits consensual sex, UNLESS it pre-existed A-C relationship.
Third-Party paying bill
Generally not allowed unless: 1) the client gives consent (CA – in writing); 2) there is NO
interference with lawyer’s independence or relationship with his client, AND 3)
information relating to client’s representation is protected.
Discuss under Confidentiality: Organizational Clients – (ABA: Report UP may
report OUT, CA: Report UP not OUT)
Attorney must act in the best interest of the entity. ABA requires attorney to report
impropriety to higher authority, and if necessary, to highest authority. If authority fails to
take timely appropriate action, attorney may report relevant information to appropriate
persons outside of org.
CA – allows reporting to higher/highest authority and prohibits attorney
from disclosing confidential info unless necessary to prevent death or
substantial bodily harm. [Federal preemption allows CA lawyers to
comply with Federal law]
- Attorney represents organization only and must make it clear that he
doesn’t represent individuals and advise them to seek independent
counsel if interests become adverse to organization.
- Attorney may represent both individual and organization until conflict
arises.
- SOX – Requires lawyer to present credible evidence of Securities
violations to CLO and if CLO fails to investigate in reasonable time,
attorney must report evidence to board. May report to SEC and reveal
confidential info (1) if substantial injury likely to result; (2) rectify injury
attorney services used to cause, or (3) prevent client from perjuring
before SEC
Mandatory Withdrawal
Withdrawal is mandatory or representation must be declined 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 materially impairs the lawyer’s ability to represent the client,
or 3) the lawyer is discharged.
Permissive Withdrawal
Attorney may withdraw if there is good cause and it does not cause undue delay or
disruption.
Good cause – (1) financially burdens attorney, (2) client acts illegally or used
attorney to commit crime, (3) client insists on objective attorney finds repugnant
or imprudent, or (4) client refuses to fulfill an obligation to attorney after being
warned of withdrawal for non-compliance.
Procedure – When withdrawing, attorney must provide reasonable notice of
withdrawal, allow client time/opportunity to replace attorney, return unused
advances (CA - not true retainer), promptly return all material papers and
property to client, and cannot refuse to return the file to compel the client to pay
outstanding fees.
CA prohibits holding client materials hostage to get paid.
Withdrawal – Corporation
A lawyer has a duty of loyalty to a corporation, not its officers or directors. If the lawyer
learns that an employee has acted in a way to case substantial injury to the corp. lawyer
must protect corp.’s interests and report. But if lawyer cannot reveal acts b/c of
developed Att/clt relationship, L is required to withdraw i.e., when officer/member
deliberately asked for confidentiality or advice in an individual, rather than corporate
capacity.
Duty of Confidentiality
Under the ABA and CA, a lawyer may not reveal any information obtained from the client
in the course of the representation intended to be kept confidential without the client’s
consent. A lawyer owes a continuing duty to preserve, indefinitely, information gained in
confidence during the former representation of a client.
CA – Lawyer has a duty to maintain inviolate client confidences.
Confidentiality Exceptions
Fraud or substantial financial loss – May disclose information to prevent the client
from committing a crime or fraud that is likely to cause substantial financial loss to a
person if the client is using or has used the lawyer’s services to commit the crime or
fraud. The same is true if disclosure is necessary to rectify or mitigate the financial loss.
CA – NO financial exception
Lawyer’s claim or defense – May disclose information to the extent the lawyer
reasonably believes necessary to establish a claim or defense on behalf of the lawyer in
controversy between the lawyer and the client.
Legal ethics Advice – May disclose information to obtain confidential legal advice about
the lawyer’s personal duty to comply with legal ethical rules.
Required by Court, ethics rules, or law – Lawyer must comply with the final orders of
a court or tribunal requiring the lawyer to give information about a client. There are also
ethical rules and statutes that require an attorney to reveal information in certain
circumstances.
Consent or implied authority – May reveal confidential information related to the
representation if the client gives informed consent or if the disclosure is impliedly
authorized in order to carry out the representation.
Death or serious bodily harm – May reveal such information to the extent that the
lawyer reasonably believes necessary to prevent a person’s reasonably certain death or
substantial bodily harm.
CA – Must first 1) make a good faith effort to persuade the client not to
commit the act, and 2) inform the client of your decision to reveal his
confidences; L then may reveal info
ATTORNEY-CLIENT PRIVILEGE
The attorney-client privilege protects the disclosure of any communication relating to the
attorney-client relationship, legal services, but not business tactics. Client is the holder of
the privilege and it includes any communications made through or in the presence of
their agents. ABA – A/C privilege continues indefinitely, even after A/C relationship has
ended
CA – Terminates when decedent-client’s estate settles and personal
representative is discharged.
Attorney Client Corporate Clients
If client is corporation, A/C privilege covers confidential communications between 1)
attorney and high-ranking officials in corporate capacity and 2) other corporate employee
if:
1) communication w/n scope of employee’s duties
2) made at the direction of employee’s superior and
3) employee knows that communication is to assist corp. in obtaining legal advice
EXCEPTIONS
- Prevent future Crime/Fraud
- Issue of breach in A/C relationship
- Civil litigation between former joint clients
- Validity of deed/will
- Competency or intention of deceased client
- CA – disclosure to prevent death or substantial bodily injury – Lawyer
may disclose in CA when he reasonably believes that disclosure is
necessary to prevent a criminal act that the lawyer reasonably believes is
likely to result in substantial bodily injury or death.
DUTY OF COMPETENCE
A lawyer owes a duty of competence that requires the legal knowledge, skill,
thoroughness, and preparation reasonably necessary for representation. If L doesn’t
know relevant law, he can’t take on matter unless he puts in time to learn w/o undue
expense or delay to client OR associate w/ L competent in subject matter.
A lawyer’s duty of competence also encompasses a duty to keep abreast
of the changes in the law and law practice, including the benefits and
risks associated with relevant technology.
Incompetent counsel in a criminal proceeding may be a violation of D’s 6th
amendment right to effective assistance of counsel
Duty of Communication
A lawyer has a duty to keep client informed about case, including ALL settlement offers
and returning phone calls/emails. Lawyer decides procedural/legal strategy. Client
decides substantive rights and critical stages: settlement offers, appeals, expenses,
witnesses, pleas/jury trial/testify in criminal case.
Duty of Diligence
A lawyer has a duty to diligently, promptly, and zealously advocate for his client in the
case to completion.
Accepting representation
Attorney is free to accept or reject any case. Attorney must reject representation if it
would violate law or disciplinary rules, when attorney is not in mental or physical shape,
or requires making frivolous argument.
Scope or representation
Clients make decisions about substantive rights and attorneys make decisions about
procedure and legal strategy.
FEES
Lawyer must not have a proprietary interest in the litigation. A lawyer must not make a
fee arrangement that could curtail his services and place the client at a bargaining
disadvantage
Non-contingent fees
Non-contingent fees must be reasonable and must have a
written fee agreement in advance, if fees are to exceed $1,000, UNLESS: 1) client is a
corporation, 2) client doesn’t want it, 3) legal services are the type client previously
received and paid for, 4) emergency situation, or 5) writing impractical
Reasonable fees
ABA requires that fees be reasonable taking into account,
labor, novelty, difficulty, skill, timing, results, experience, other demands on
attorney and fee arrangement. CA requires that fees not be unconscionable.
ABA: Single agreement must contain 1) how the fee is calculated, 2) services
covered, and 3) lawyer’s and client’s duties.
CA: Same as ABA + writing agreement signed by client unless 1) fee is
under $1,000; 2) it is with corporate client; 3) it is routine service for
regular client, or 4) emergency or impractical.
Contingent fees
written agreement must be signed by client and contain: 1) attorney’s
%; 2) expenses to be deducted from recovery; and 3) whether % is taken before or after
expenses.
CA – also requires it state 4) how work not covered by contingency fee
will be paid and 5) that attorney’s fees are negotiable.
Contingency fees NOT allowed in criminal cases or domestic cases if fee is contingent
on divorce, alimony, or property settlement
Arbitration
ABA merely encourages arbitration when disputes rise between attorney
and client about fee arrangement. CA requires attorney to submit to arbitration to settle
fee disputes if client so desires.
Fee splitting
It is generally permissible to split fees w/other attorneys in the firm. Fee
splitting is permissible with attorneys outside of firm only if 1) ethical, 2) there is written
disclosure to client, 3) client consents. MR requires that fee division be proportional to
work done unless each is jointly responsible for the action.
CA: OK if the total fee is not unconscionable and client consents
Referral fees to an attorney
ABA prohibits referral fees. CA permits referral fees so
long as total fee is not unconscionable and not increased due to referral.
Fee splitting with non-lawyers
fee splitting with non-lawyers is generally not allowed
except for 1) pension plans to employees; 2) death benefits to deceased attorney’s
estate; and 3) sharing court-awarded attorney fees with non-profit organization that
employed or recommended the lawyer.
Partnership with non-lawyers
partnership with non-lawyers to provide legal services
is absolutely prohibited. However, reciprocal referrals with other professionals are OK if
they are not exclusive and you explain the arrangement with the client.
Client trust accounts
attorney has duty to safeguard client’s property by labeling and
storing in safe place. Money received on client’s behalf and advances for cost,
expenses, and fees must be placed in client trust account and interest payable to
client. Attorney cannot borrow or commingle funds with personal money. However,
smaller funds held for a short time for several clients can be deposited into a “pooled”
client trust account w/ interest payable to the state bar. Permissible to withhold disputed
claim amount from client until claim resolution.
Record keeping
attorney has duty to keep good records for client, render accounts,
and notify him of moneys received on his behalf. CA requires attorney to keep records of
client property for 5 years after final distribution.
Non-Profit (CA)
Where the legal fee is not court awarded, but arises from settlement or
other resolution of the claim or matter, the lawyer may share or pay the legal fee to the
nonprofit organization, provided that the nonprofit organization qualifies under section
501(c)(3) of the Internal Revenue Code and the lawyer complies with requirements to
protect the client
ADVERTISING
Advertising for legal services must not be false or misleading. It must not raise
unjustifiable expectations or make unverifiable comparison.
CA – presumes any ad that contains, guarantees, warranties, or
predictions improper and requires that testimonials be accompanied by
disclaimer.
Label – Every ad must be conspicuous as advertising by including the words
“Advertising Materials”
Identification – The ad must identify at least one attorney responsible for its
contents
Legal Specialty – MR: attorney cannot claim specialty unless attorney certified as
specialist by an approved organization, which must be disclosed in the ad.
CA – L not a specialist w/o Experience, Exam, Education, Evaluation.
Harass – Ad must not harass or solicit someone who has indicated that she
wants to be left alone.
Records – The attorney must keep records of contents and placement of any ad
for 2 years.
SOLICITATION
A lawyer has a duty not to improperly solicit clients for a fee: in person, live, electronic,
or telephone contact for profit. Pro bono solicitation and solicitation to lawyer’s family,
clients, former clients and to other lawyers is permissible. (CA: by live or telephone). +
Harass + Liable.
CA presumes that communications made at scene of accident or en route
to medical facility are improper as well as communications to potential
clients that are not in physical or mental state to exercise reasonable
judgment
DUTY OF CANDOR AND HONESTY
An attorney is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation.
DUTY TO STATE LAW TRUTHFULLY
An attorney is prohibited from making false statements of law to court. Attorney has an
obligation to be candid about law and has a duty to cite adverse authority if it is from
controlling jxn and directly on point. Presenting frivolous claims or defenses is unethical
and subject to disciplinary action.
DUTY TO UPHOLD THE LAW
If representation requires an attorney to commit or assist in committing a crime, the
attorney must withdraw. If the client persists in actions that the attorney reasonably
believes are criminal or fraudulent, but does not assist, the attorney may withdraw.
Preventing a crime – If the client is going to commit a crime reasonably likely to
result in death or serious bodily injury, disclosure is permissive.
CA – same, but not if the crime would cause substantial financial loss.
DUTY TO PRODUCE EVIDENCE
Attorney cannot intentionally or knowingly destroy, conceal or alter evidence, obstruct
another from access or counsel anyone else to do so. Attorney has a duty not to
suppress any evidence that the client or attorney has legal obligation to reveal.
Reasonably certain contraband: The attorney must deliver client’s reasonably
certain contraband to authorities.
Interference with evidence – Attorney and agents may look at evidence, but not
touch it. If evidence is retrieved, attorney must turn over to authorities and may
be compelled to testify about location or condition (but not source).
“Ex parte” proceedings (unusual communications w/ judge w/o adversary
present) – Ethical duties of candor and fairness to an absent adversary require
relevant information to be revealed even if harmful to own client’s case.
Special duties of prosecutor – Prosecutors must 1) refrain from prosecuting a
charge not supported by probable cause, 2) make reasonable efforts to make
sure accursed has been advised of his rights to counsel and given reasonable
opportunity to obtain counsel and 3) make timely disclosures to defense of all
exculpatory evidence.
DUTY TO PRESENT FACTS/EVIDENCE TRUTHFULLY
An attorney must refuse to falsify evidence, make false statement of material fact or
offer evidence known to be false to the tribunal or fail to correct false statement of
material fact that attorney previously made or presented to tribunal
CLIENT PERJURY
CLIENT PERJURY
An attorney must not knowingly facilitate client perjury.
Civil case
In a civil case, the attorney must refuse to call client as a witness if he knows
client intends to perjure.
Criminal case
Criminal D’s have 5th Amendment right to testify on their own behalf and 6th
Amendment right to effective assistance of counsel. Attorney also has ethical
obligation to protect client’s confidences. If client intends to perjure, (1) attorney
must advise client to testify truthfully or not take stand, (2) attorney should try to
withdraw from case, or (3) ABA requires disclosure to judge and CA allows D to
testify in narrative fashion but not further the deception.
After Proceedings
If the attorney discovers the perjury after the proceedings, the attorney is
required to take reasonable remedial measures (listed above), but duties end
after the time for appeal has run.
Rendering witness unavailable
Attorney must not counsel or assist witness to testify falsely or become
unavailable. The attorney may pay basic expenses of a witness and reasonable
fees for an expert if payment is not contingent on content of testimony.
Criminal Defense Attorney
A criminal defense attorney is not subject to discipline for putting the prosecution
to its burdens and requiring every element of the case to be proven beyond a
reasonable doubt
DUTY OF FAIRNESS
Lawyer has a duty to behave honestly in all dealings, whether or not engaged in the
practice of law. When there are no explicit rules, the attorney must promote public
confidence in the integrity and efficiency of the legal system and profession.
Dealing fairly with others – Documents sent inadvertently – If the attorney
knows documents were inadvertently sent, the attorney must stop reading and
notify opposing counsel. Can’t copy or disseminate the document or use for own
advantage otherwise attorney will be disqualified from the case.
Communication w/adversaries and TPs – The attorney must not lie or mislead
opposing counsel or TP as to the attorney’s interest. The attorney must not
violate the legal rights of a person to get evidence or use means w/ no purpose
to delay, burden or embarrass them.
Communication with represented TPs – Unless authorized by law of the
attorney obtains the consent of the TP’s lawyer, attorney must not communicate
with party known to be represented by counsel on the matter when attorney is
representing another on same matter. However, attorney can provide second
opinion.
Dealing with press – D’s right to fair trial is balanced against press and public’s
right to know. Attorney should avoid out-of-court statements that have substantial
likelihood of materially prejudicing case unless (1) it is a matter of public record,
(1) warning the public or asking public for assistance, or (3) statements required
to protect client from undue prejudice from recent publicity not self-initiated. Also,
prosecutors must not make comments that have substantial likelihood of
heightening public condemnation of accused.
DUTY TO PRESERVE IMPARTIALITY/DECORUM OF TRIBUNAL
An attorney must not try to improperly influence by trickery, disruptive conduct or
theatrics. Before and during trial, the attorney must not talk to any prospective or
empanelled juror, after trial the attorney may interview juror with valid consent.
DUTY TO EXPEDITE CASES
ABA makes it affirmative duty to expedite cases. There is a duty to follow procedural
rules unless attorney is making good faith challenge to their validity.
CA prohibits attorney from delaying cases to harass adversary or for
personal gain or convenience.
UNAUTHORIZED PRACTICE OF LAW
An attorney must not engage in or assist others in the unauthorized or unlicensed
practice of law except by pro hac vice order. ABA multi-state jurisdictional practice
allows temporary practice in another state if attorney associates with in-state attorney.
CA permits out-of-state attorneys to practice in-state if: (1) registered
legal services attorney – practicing under supervision of CA attorney for
no more than 3 years; (2) registered in-house counsel – but no individual
representation or court appearances; and (3) attorneys practicing
temporarily in-state arising out of practice in home state.
REPORTING MISCONDUCT
ABA requires reporting another attorney’s conduct that raises substantial question of
dishonesty, untrustworthiness, or fitness as attorney.
CA does not require reporting misconduct of others, but requires self-
reporting (3 malpractice claims in year, civilly liable for fraud/breach of
fiduciary duty, sanctions > $1K, felony charge, discipline in other jx).
DUTIES OF SUBORDINATE ATTORNEYS
Clear violations – Subordinate attorney is independently responsible for clear
violations of ethical responsibilities regardless of the instructions of the
supervising attorney.
Debatable provision – Supervising attorney is solely responsible.
Supervising attorney’s ethical responsibility – The supervising attorney is
liable if he ratified the action or knew of conduct and failed to take action.
