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52 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Rule on Financial Assistance to Clients plus CA rule
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A lawyer is not to provide financial assistance generally, however:
1) May advance court costs and litigation expenses, repayment contingent on outcome of the case. 2) May pay court costs and expenses for an indigent client outright. CA rule is that all expenses may be advanced if there is a written promise to repay the loan. |
Court costs and litigation expenses
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Requirements of 3rd Party Compensation
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Where compensation is provided to the lawyer by a third party to the lawyer-client relationship, the lawyer must protect his client from interference – both with the lawyer-client relationship and with the lawyer’s independent professional judgment. Information relating to the representation of the client must be protected. This payment relationship requires informed consent by the client, and CA rules require that consent to be in writing.
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Limitation of Malpractice Liability
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1) Lawyer may not limit liability w/o client being represented independently by counsel.
2) Lawyer may not settle a claim for malpractice with a client w/o advising in writing that independent counsel is desirable and give reasonable opportunity for such consultation. |
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Duty of Confidentiality
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ABA Model Rules require that a lawyer may not reveal information regarding representation of a client w/o informed consent. The confidentiality requirement applies no matter when information was acquired.
CA rule is CA Business Code that a lawyer must protect as inviolate the confidences of the client. |
ABA and CA
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Attorney-Client Privilege
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A client may refuse to testify and prevent his attorney from testifying in court about confidential communications between the two or their agents. Pertains only to legal services, but includes discussions about potential representation.
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Confidential communications
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Exceptions to Attorney-Client Privilege.
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1) Client seeking attorney's services to enable a future crime or fraud.
2) Litigation which arises between two persons formerly joint clients of attorney. 3) Communication relevant to a breach of duties arising out of the attorney-client relationship. 4) Attorney may furnish evidence about the competency or intention of a client attempting to dispose of property by will or inter vivos transfer. 5) CA - an attorney may disclose intention of a client to commit a criminal act resulting in death or substantial bodily harm where disclosure is necessary for prevention of the act. The client need not be seeking assistance from the attorney, as in 1. |
Criminal, client disputes, testamentary intent
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Solicitation
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Initiating direct contact with a potential client for the purpose of being retained for compensation. Generally not allowed in person (live or telephone) except for family, friends and former clients.
Written and recorded solicitation is allowed where: 1) Material is identified as solicitation. 2) Solicitation is not contrary to request not to solicit. 3) No coercion, duress, or harassment. |
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Lawyer and Firm Identity
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A deceased or retired lawyer may be used by a firm so long as there is a continuing succession of identity.
A lawyer who goes into public service for an extended period must be deleted from the firm name. |
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Soliciting v. Advertising
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Solicitation is direct contact for the purpose of being retained for compensation (in-person, direct-mail, recorded phone messages).
Advertising is a general communication not aimed at a specific individual (TV or newspaper advertisements). The Supreme Court has recognized that lawyer advertising is protected as commercial speech under the First and Fourteenth Amendment. As commercial speech, it may be regulated by the states but not prohibited. |
Direct contact v. commercial speech
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Attorney MUST withdraw from a case when:
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1) Discharged by a cllient
2) Continued representation will result in legal or ethical violation. 3) Mental or physical condition impairs lawyer's ability to represent client. |
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Proper Withdrawal from Case
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A general rule is that an attorney must w/d from representation properly:
R - Refund any unearned prepaid fee. N - Notice (reasonable) given to client C P - Court Permission if pending court or tribunal matter R - Return all property or papers to which client is entitled. |
R. N. CPR - A nurse giving CPR to dying client.
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Conflicts of Interest
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A lawyer may not take on or continue representing a client if:
1) Representation is directly adverse to another client 2) Representation materially limited by lawyer's duties to someone else. Conflicts that the lawyer reasonably believes will not adversely affect the client relationship can be overcome if all affected parties are advised of the nature of the conflicts, and each offer their informed, written consent. |
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Situations for Attorney Disqualification
GoLFCart |
G - Gift, lawyer prepares an instrument giving the lawyer or close relative a substantial Gift (unless client related). In CA - lawyer is prohibited from inducing the gift, not preparing the instrument.
L - Limit, the lawyer's responsibilities to someone else materially limit his representation of the client. F - Former, Lawyer represents a client whose interests are materially adverse to interests of a former client in the same or substantially related matter (can be waived). C - Current client, lawyer represents a client whose interests would be directly adverse to another client currently represented by the lawyer or his firm. |
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Lawyer Leaves Firm with Clients
SM,AK |
The old firm may not take clients adverse to clients who left with lawyer if:
SM - Same Matter is involved, or substantially related to the matter in which the lawyer who left represented former client. AK - a remaining lawyer w/ old firm has Actual Knowledge of the former client's confidential information material to the dispute law firm is contemplating representing the new client. If no remaining lawyer has such information, then no need to analyze SM. |
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Lawyer Goes to Government - Limitations
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Lawyer is prohibited from participating in a matter involving a former client if PERSONALLY AND SUBSTANTIALLY PARTICIPATED in the former client's matter before taking government employment.
Conflict does not impute to other government employees. |
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Factors in Setting Attorney Fees
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1) Time & labor involved
2) Novelty & difficulty of questions involved 3) Skill required 4) What other lawyers in the community charge 5) Amount at stake and results obtained 6) Experience 7) Reputation 8) Ability of lawyer 9) Time limitations imposed by client or the circumstances 10) Fixed or contingent fee |
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Contingency Fee Requirements
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1) A written fee agreement, signed by the client, is required
2) The % must be reasonable and state the method by which fee is determined 3) It must state expenses for which the client will be responsible 4) Not allowed in criminal cases or domestic relations cases (CA prohibits only where it may affect family unity). CA additional rules: 5) must be disclosed that fee is negotiable and not set by law 6) fees not covered by contingency must be explained. |
written, signed, reasonable, expenses and not criminal.
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Fee Agreement
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The ABA Model Rules state that where the lawyer has not regularly represented the client, the fee must be communicated to the client, preferably in writing, before or within a reasonable time of commencing representation.
In CA, the agreement must be in writing if reasonably believed to be more than $1,000, unless: 1) The client is a corporation, 2) The client states in writing that she does not want a fee agreement, 3) Legal services are the same as previously agreed to (a regular client), 4) The lawyer acted in an emergency, or 5) A writing is impractical for other reasons. |
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False Evidence Offered by Client
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If a lawyer has offered evidence, and later discovers it is false, the lawyer must take reasonable remedial measures (including disclosure to tribunal if necessary). The measures include:
1) Warn client or other witness of the lawyer's duty to reveal false evidence. 2) Failing 1, the lawyer may ask for permission to w/d. 3) Last resort is to disclose enough information to the court to set the matter straight. Criminal defendant who insists on testifying falsely - The defendant has a constitutional right to testify, so if a lawyer knows testimony is false, then must follow steps 1-3. CA allows steps 1-2, then use narrative statement instead of direct questioning of defendant. |
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Multi-Jurisdictional Practice
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A lawyer licensed to practice in one state but not the other must not:
1) Open a law office in the other state 2) Hold himself out as practicing in the other state 3) Establish a "systematic and continuous" presence in the other state without becoming licensed. |
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Permissible Temporary Multi-Jurisdictional Practice
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1) In association with an active local lawyer
2) With special permission from a local court ("pro hac vice" = admission for purposes of this matter only). 3) Mediation or arbitration arising out of practice in home state. 4) Other temporary practice - must be reasonably related to the lawyer's home state practice. |
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Unauthorized Practice of Law
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No clear definition, but functionally it includes:
1) Court appearances 2) Giving legal advice or drafting a legal document for a fee 3) Extraterritorial practice of licensed lawyers. 4) Services which call for the professional judgment of a lawyer (this includes assisting a person who is not a member of the bar in practicing law). Functionally, the practice of law relates to the rendition of services for others that call for the PROFESSIONAL JUDGMENT of a lawyers. Professional judgment is the lawyer's educated ability to relate the general body of law and philosophy of law to a specific legal problem. |
Professional judgment
relate the general body and philosophy of law to a specific legal problem. |
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Lawyer Practicing with Non-lawyers
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A lawyer may not practice law in association with, or otherwise share fees with, a non-lawyer in order to avoid the danger that a non-lawyer could direct the lawyer in exercise of professional judgment.
A non-lawyer may not own an interest in a law firm. |
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Basic Rule - Legal Advertising
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Any type of communication about the lawyer or her services must not be false or misleading. It will be false or misleading if:
1) It contains a material misrepresentation of law or fact, OR 2) omits information that is necessary to make the communication as a whole not materially misleading. |
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CA Rebuttable Presumption of False & Misleading Communications
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The following types of communications are presumed false or misleading:
1) Communication with a potential client in the hospital or suffering from physical or mental stress. 2) Mailings that seek fee-paying work but are not labeled as advertising. 3) Communications with a testimonial or endorsement without a disclaimer that they are not a promise of results. |
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What if a client turns over to an attorney documents or other evidence relevant to the case?
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An item does not become privileged under attorney-client privilege just because it was given to an attorney. If the item was discoverable in the hands of the client, it is equally discoverable in the hands of the attorney.
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Duty of Confidentiality - Exceptions
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1) Client gives informed consent
2) Disclosure is impliedly authorized to carry out representation 3) Lawyer reasonably believes it is necessary to prevent a person's reasonably certain death or substantial bodily harm 4) Disclosure is required by court order, ethics rules, or certain statutes 5) Disclosure is necessary to collect a fee or protect the lawyer 6) Disclosure is necessary to obtain confidential legal advice about the lawyer's duty to comply with legal ethics rules. A lawyer who receives a court order for client files or records must seek to limit the order or subpoena so as to protect the client's confidentiality as much as possible. |
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Gifts from Clients
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CA rule prohibits "inducing" any "substantial gift" from a client unless the client is related to the lawyer. The CA lawyer may receive such a gift if there is no undue influence "inducing" the gift.
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Adverse Financial Interests
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A lawyer may not enter into business transactions with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless:
1) Fair and reasonable to the client and fully disclosed in writing 2) Advised client of desirability of seeking advice of independent legal counsel 3) Client understands lawyer's role in the transaction and gives informed consent. |
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Duty of Competence and Care
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Competent representation requires:
1) Legal skill and knowledge 2) Thoroughness and preparation reasonably necessary 3) Must act with reasonable promptness and diligence, and keep client reasonably informed. |
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Communications with Represented Persons
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While representing a client, a lawyer must not communicate about the matter with a person he knows to be represented by counsel in the matter unless that person's counsel has granted permission or otherwise authorized by law or the court.
This applies even when the represented person initiates the conversation. |
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Communications with Organizations
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Must get consent of the organization's counsel before communicating with a constituent of the organization:
1) A person who supervises or regularly consults with the organization's lawyer about the matter 2) A person who has authority to obligate the organization with respect to the matter, OR 3) A person whose conduct in the matter may be imputed to the organization. |
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Aggregate Settlements
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Each client must give informed consent in a signed writing.
Lawyer must disclose existence and nature of all claims or pleas involved and the participation of each party to the settlement. |
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Third Party Conflict - Paying Lawyer's Fee
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A lawyer may not accept compensation for representing a client from one other than the client unless:
1) Client gives informed consent 2) No interference with lawyer's independence of professional judgment or with the lawyer-client relationship 3) Information related to representation of client is protected from third party. |
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Permissive Withdrawal
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In CA, a lawyer may withdraw from representation if:
1) The client persists in action involving the lawyer's services that the lawyer reasonably believes is criminal or fraudulent 2) The client insists on taking action which the lawyer considers repugnant or with which the lawyer has a fundamental disagreement 3) The client fails to substantially fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable notice of withdrawal if obligation not fulfilled 4) Other good cause for withdrawal |
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Defenses to Imputed Conflicts
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To prevent disqualification of a firm representation of a client with which a firm attorney has a conflict, the following screening defenses are available:
1) Don't talk - the firm's lawyers are prevented from speaking with the conflicted lawyer about the matter. 2) No pay - the conflicted lawyer may not receive any pay from the firm's profits attributable to the matter 3) Lock it up - the conflicted lawyer may not have access to files on the matter 4) Move out - the conflicted lawyer's offices may be moved to a location away from lawyers working on the matter. |
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Motion to Disqualify Due to Conflict - Considerations
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1) Client's right to choice of lawyer
2) Timing of the screening process - screening procedures are less effective if begun close in time to motion to disqualify, or if the conflicted lawyer has been at a firm for a long time. 3) Intentional creation of conflict by moving party - some parties spread their legal work among many firms to prevent suits against them due to conflict. Such tactics will be weighted against a motion to disqualify. 4) Judicial economy - notions of judicial economy favor denial of motions to disqualify. |
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Former Govt. Lawyer Conflict
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The fact that a lawyer was employed in a particular agency will not disqualify him. The lawyer must have PERSONALLY AND SUBSTANTIALLY PARTICIPATED in the matter
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Personally and substantially
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Multiple Client Representation
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ABA Model rules require an attorney to have a reasonable belief that there is no significant risk that a conflict of interest will materially limit the representation, and the client gives informed consent.
CA rule is that a lawyer may undertake such representation if the clients give written, informed consent. |
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Reasonableness of Fees
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ABA rules require that a lawyer's fee be reasonable in light of the skill, experience, time, and degree of difficulty required of the matter.
CA requires only that the fee not be "unconscionable." |
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Imputed Conflict Screening Defenses
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1) Don't Talk - the firm's lawyers must not speak with the conflicted lawyer about the matter.
2) No Pay - the conflicted lawyer must not participate in profits attributable to the matter 3) Lock It Up - conflicted lawyer must not have access to client files related to matter. 4) Move 'Em Out - the conflicted lawyer's office must be moved away from firm's lawyers who are working on the matter. |
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Duty of Confidentiality - Reporting Fraud
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The duty of confidentiality requires a lawyer to keep confidential all information provided to the lawyer for the purpose of rendering legal services. The Model Rules of Professional Conduct allows a lawyer who is aware that a client intends to commit a fraud to disclose information in order to avoid the fraud if the lawyer's services are being used in connection with the fraud. There is no CA corollary.
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Representation of Multiple Clients
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According to the Model RPC, a lawyer can only take on multiple clients in a matter where he reasonably believes they do not have divergent interests and he can provide fair and competent representation to both clients.
Elements: 1) This judgement must be based on an objective "reasonable attorney standard." 2) Not prohibited by law 3) No client claim asserted against another client 4) Clients must give informed, written consent. In CA there is no reasonable attorney standard, but there must be disclosure of potential conflicts in writing, with consent in writing. |
4 Elements
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Duty of Competence
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The duty of competence requires that a lawyer exercise the ordinary skill, diligence, and zeal in representing his client that an ordinary lawyer would under the circumstances. Without prior experience in a particular field, the lawyer may still take a case so long as:
1) He does the work to become educated and competent w/o extra expense to the client, OR 2) he associates with competent counsel who can assist the lawyer. |
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What conditions can imply an attorney client relationship?
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SAnd, ROCk, GrAvel
SA (Sought Advice) - client Sought legal Advice or assistance on a serious and substantial legal matter. ROC (Range Of Competence) - matter was within the Range Of Confidence of lawyer. GA (Gave Advice) - lawyer Gave or undertook to give the Advice or assistance the client sought. |
SAnd, ROCk, GrAvel
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What may a lawyer not express an opinion about in court?
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C.J.'s CIG
C - Credibility of a witness. J - Justness of the client's cause. C - Culpability of a civil litigant. IG - Innocence or Guilt of a criminal defendant. |
C.J.' CIG
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Restrictions on Candidates for Judicial Office
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Cold Plate of DIMSum
CP - no Campaign Promises other than to faithfully and impartially fulfill the duties of the office. D - maintain the Dignity appropriate of the office I - avoid making statements which tend to commit to positions on Issues likely to come before the court. M - avoid Misrepresenting any material facts regarding opponent of himself. S - not allow Subordinates in the campaign to do that which the candidate cannot do. |
Cold Plate of DIMSum
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Extrajudicial Statements
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A lawyer must not make statements concerning a trial which he knows or should know will:
1) Be disseminated to the public 2) Have a substantial likelihood of materially prejudicing an adjudicative proceeding. |
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Special Duty of a Prosecutor
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A prosecutor must:
1) Only prosecute where there is probable cause, AND 2) Reveal any exculpatory evidence to the opposing party. Exculpatory evidence is any evidence which weighs in favor of acquitting the defendant. |
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Professional Judgment of a Lawyer is ...
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the lawyer's educated ability to relate the general body of law and philosophy to a specific legal problem.
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Trial Counsel as Witness
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The trial counsel may not serve if the attorney is likely to be a necessary witness in the case. A necessary witness is the only person who could introduce a certain piece of evidence.
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What is required of direct mail solicitations for legal services?
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1) The object of the mailing must be known to need specific legal services
2) The overall communication must not be materially misleading or omit necessary information to make the communication truthful 3) The envelope must be labeled, as well as the first page of a letter, as "Advertising Material." |
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