Barbri - Professional Responsibility

Front 1

C Clients  Confidentiality
L Love Loyalty
F Fierce Fiduciary responsibility
C Counsel Competence & reasonable things

Back 1

duty owed to clients

Front 2

C Courts  Candor/truthfulness
F Feel Fairness
D Differently Dignity/decorum & reasonable things

Back 2

duty owed to tribunal

Front 3

1. Can’t use/reveal any confidential info related to the representation of a client w/o her consent
2. Applies whether or not client requested confidentiality
3. Duty continues indefinitely
a) Even after representation ends
4. Source does not matter – reasonably lead to discovery of conf. info
a) Doesn’t have to be from client or her agents

Back 3

duty of confidentiality to your client

Front 4

1. Consent
a) From client After consultation
2. Crimes
a) ABA & CA
(1) May reveal if reasonably believe necessary to prevent death or substantial bodily injury
(2) CA – GF to persuade client not to do & inform client reveal
b) ABA only - Financial Crimes:can reveal enough info to prevent injury, will turn into a must if revealing is the only way to avoid assisting crime
(1) Noisy Withdrawal: inform other party of withdrawal & that you no longer stand behind matter in which you helped
3. Δ Yourself (collecting fees, malpractice, discipline)
a) Can reveal confidences to establish claim or Δ
4. Compelled By Law/Court Order

Back 4

duty of confidentiality to your client: exceptions

Front 5

1. Narrower evidentiary rule
a) Limits gov’t ability to compel atty to disclose
2. ONLY applies to info from client or her agents
3. Exceptions (DOC may still apply):
a) Client seeks attorney services commit any future crime/fraud
b) CA – future crime resulting in sub. bodily harm/death
(1) Reasonable belief disclosure necessary to prevent
c) Dispute b/t attorney & client
d) Former Joint Clients

Back 5

duty of confidentiality: attorney/client privilege diminished

Front 6

evaluate as conflicts arise (disclose, consent, or withdraw if consent  reas)

Back 6

duty of loyalty

Front 7

1. No interest can materially limit or be directly adverse to loyal representation
a) Yours, another client, 3rd party
b) Analyze both as potential and actual
2. CAN’T represent client unless:
a) Reasonably believe can represent effectively (subjective)
(1) Potential or actual conflict won’t affect representation
b) Inform client(s) (if DOC prevents disclosure – consent  possible)
c) Client(s) consent
(1) CA - in writing
d) Consent is reasonable (obj. std) reas. attny would not advise  consent

Back 7

duty of loyalty

Front 8

current firm treated as “unit”
a) CA – follows rule, but won’t subject to discipline
b) Exceptions:
(1) Conflict b/c of prior gov’t services
(2) Conflict b/c purely personal interest
c) “Ethical Wall” – block off contact b/t attny w/conflict & others

Back 8

duty of loyalty: imputed disqualifications

Front 9

1. Refuse representation
2. Advise get new or separate counsel
3. Withdraw

Back 9

duty of loyalty: remedy

Front 10

1. Atty shouldn’t have a proprietary/econ interest in the litigation subject matter
a) Except for atty lien on property to get $
b) Except Contingent fee work

Back 10

duty of loyalty: conflicts between atty and client

Front 11

a) Okay if:
(1) Terms are fair to client
(2) Fully disclosed in writing
(3) Client has opportunity to see outside atty
(4) Client consents in writing
b) Ex. atty paid in stock
(1) Ok if reasonable value for service
c) Watch for individual/firm major asset/investments that skew advice to:
(1) That client or Other clients
d) No automatic bar to serving on client board
(1) Being director bad, bad, bad unless:
(a) Legal Services Organization

Back 11

duty of loyalty: conflicts beteween atty and client: business transactions and adverse interests

Front 12

3. Using client info against client violates DOL & DOC

Back 12

duty of loyalty: conflicts between atty and client

Front 13

a) ABA
(1) Only after representation ended
b) CA
(1) Discouraged, but ok if judge finds client understands/consents

Back 13

duty of loyalty: conflicts between atty and client:

pubilcation rights contracts between atty and client

Front 14

a) ABA
(1) Prohibitted
(2) Except litigation costs & expenses for indigent client
(3) OR litigation expense advance if client promises to pay
b) CA – cannot promise to pay debts to gain business, but once hired:
(1) All loans for any purpose okay
(2) Requires written IOU

Back 14

duty of loyalty: conflicts between atty and client:

loans and advances

Front 15

a) ABA:
(1) Cannot solicit substantial gift (may accept if gift is reasonable)
(2) Can’t draft legal instrument unless attny’s relative
b) CA
(1) Cannot solicit gift, drafting ok

Back 15

duty of loyalty: conflicts between atty and client:

gifts

Front 16

7. NO Limit on Malpractice liability or right to report for PR violation
a) Not prospectively unless independently represented for mal liability
b) Can only settle after written advice to client to get other atty

Back 16

duty of loyalty: conflicts between atty and client:

malpractice

Front 17

a) ABA: Cannot oppose party represented by relative w/o consent
(1) Relative = immediate family
b) CA - stricter
(1) Includes any intimate relationship (own attny, roommate)

Back 17

duty of loyalty: conflicts between atty and client:

relations with other side atty

Front 18

a) Can’t be both
b) Exceptions:
(1) Won’t prejudice client & testimony is uncontested; or
(2) Services rendered; or
(3) ABA
(a) Hardship to client if you w/draw
(b) Only potential witness on the matter
(4) CA
(a) Is before judge, not jury
(b) Written consent of client

Back 18

duty of loyalty: conflicts between atty and client:

trial counsel necessary witness

Front 19

a) Two clients w/inconsistent positions in different cases – ok w/consent

Back 19

duty of loyalty, client conflicts:

potential conflicts ok

Front 20

a) Opposite sides same matter
b) Opposing present client in simultaneously pending matter
(1) CA: ok if client & insurance indemnity

Back 20

duty of loyalty: client conflicts:

no actual conflicts

Front 21

a) Criminal
(1) NEVER if appointed
(2) Maybe ok, but could violate 6th right to effective counsel
b) Civil
(1) Generally ok
c) Procedure: Can act as intermediary for agreed parties if
(1) Reasonably believe can represent effectively (subjective)
(2) Potential or actual conflict won’t effect representation
(3) Inform client(s)
(4) Client(s) consent
(a) CA - in writing
(5) Consent is reasonable (obj) disinterested attny would approve

Back 21

duty of loyalty: client conflicts:

multiple clients in same matter

Front 22

e) If potential conflict becomes actual  cannot represent! Advise about conflict, then must withdraw entirely or from party that doesn’t have info

Back 22

duty of loyalty, client conflicts:

multiple clients in same matter

Front 23

a) Attny owes continuing DOC
(1) May take if both parties consent (CA – in writing)
b) Cannot take if representation overlap in (i.e. substantially same matter)
(1) Function
(2) Scope
(3) Information
c) Imputed DQ
(1) Only to former firm if:
(a) Matters substantially related
(b) Any remaining atty has confidential info

Back 23

duty of loyalty, client conflicts:

new clients in matters related to former clients

Front 24

d) Former gov’t atty now pvt (applies judicial clerks, judges, arbitrators)
(1) Can’t work on if:
(a) Personally & substantially worked on matter before
(b) Matter = same specific dispute/people/issues
(c) Regulations NOT a matter
(2) Other members of firm okay if:
(a) Ethical wall (your screened off)
(b) You get NO fees (salary ok); and
(c) Gov’t employer notified
(3) CA: silent, but prosecutors cannot later participate in defense

Back 24

duty of loyalty, client conflicts:

new clients in matters related to former clients

Front 25

1. Sole duty to your client
2. 3rd party payer ok only if client consents; 3rd does not interfere w/attny independent jmt; and scheme won’t compromise client’s confidential info

Back 25

duty of loyalty, 3rd party conflicts

Front 26

a) Duty to entity & Act in best interest of entity
b) Sarbanes-Oxly – if client is violating fed or state securities law
(1) Must report to CEO or Chief Legal (and investigate matter)
(2) If no response, Must go to board or highest authority;
(3) If believe it is reasonably necessary to prevent fraud (sub injury to investors) may disclose conf info to SEC w/o client consent
c) ABA: if officer is acting against corp interest
(1) Must proceed as is reasonably necessary in best interest of corp
(2) Report to higher authority
(3) If no response, may report outside corp authority if necessary
d) CA: permissive reporting to higher authority & cannot reveal confidential info; won’t discipline for following fed law (preemption)

Back 26

duty of loyalty, 3rd party conflicts - Organizations

Front 27

fiduciary to clients:

reach early (in advance) & clearly
1. Non-contingent fees
a) ABA: How calculated; What svs covered; Attny & Clients Duties
b) CA – ABA + in writing
(1) N/A if:
(a) Under $1k; Corporate client; Routine services for regular client; OR emergency/impractical

Back 27

fees

Front 28

fiduciary duty to client:

a) Must be in writing (signed by client)
b) Must Include:
(1) Atty % (how fee is calculated)
(2) What expenses deducted from recovery (costs will be handled)
(3) If atty % before or after expenses
(4) CA also requires:
(a) How work not covered by contingency is paid
(b) That atty fees are negotiable, no standard %
c) Allowed for:
(1) ABA
(a) NOT criminal or family law
(2) CA
(a) Silent on criminal issue
(b) OK for divorces - As long doesn’t encourage break-up

Back 28

contingent fees

Front 29

fiduciary to clients:

a) ABA (in the affirmative)
(1) Must be reasonable
(2) Account for labor, novelty, difficulty, skill & timing req’d, result obtained, experience of atty, other demands on atty time,
(3) Encourages fee arbitration
b) CA (in the negative)
(1) Must not be unconscionably high (ct won’t enforce if uncons)
(2) Requires fee arbitration if client wants

Back 29

amount of fee

Front 30

duty of fiduciary to client:

attys in firm ok

Back 30

fee splitting

Front 31

duty of fiduciary to client:

(1) ABA
(a) Total fee reasonable
(b) Written disclosure & client consents
(c) Fee proportional to work done
(i) If joint, any proportion
(d) NO referral fees!
(2) CA
(a) Total fee not unconscionable
(b) Written disclosure & consent
(c) Proportionality n/a
(d) Referral fee ok if doesn’t increase total fee

Back 31

fee splitting with attorney outside firm

Front 32

duty of fiduciary to client:

(1) Not allowed
(2) Exceptions
(a) Death benefits to firm/heirs
(b) Non-atty EEs’ pension/compensation
(c) Share ct awarded fees w/non-profit that recommended

Back 32

fee splitting with on atty

Front 33

fiduciary to client:

1. They can’t control or direct lawyer’s professional judgment
2. May have reciprocal referral if not exclusive arrangement & explain to client

Back 33

no partnership with non attys provdiing legal service

Front 34

fiduciary to client:

1. Client property must be labeled & stored in safe/bank (duty to safeguard)
2. Client $ keep separate (no commingle or stealing)
a) Interest bearing acct
b) Client gets interest
3. Pooled client trust accts (hold smaller funds at once) if:
a) Smaller funds/Short period of time
b) Several clients
c) Interest to service charges 1st then CA state to fund legal services
4. Duty to keep records, render acctgs, notify of $, pay $ promptly
5. CA – keep records for 5 yrs

Back 34

client trust account

Front 35

competence and reasonable things:

1. = Legal knowledge, skill, thoroughness & preparation reasonable necessary for the representation (can learn the law or seek outside help)

Back 35

duty of competence

Front 36

competence and reasonable things:

a) Discipline by Bar or Disqualification
b) Civil malpractice
(1) Ethical violation is relevant to malpractice but not a presumption of malpractice
(2) Requires legal claim
(a) Breach of K
(b) Tort
(i) Negligence
(a) Breach of duty of due care
(ii) Specialist negligence
(a) Standard = reasonably prudent specialist

Back 36

failure to render competent services subject to:

Front 37

competence and reasonable thigns:

1. Free to accept or reject any case (not a bus)
2. Should accept if:
a) Case of Δless or oppressed
b) Fair share pro bono
(1) ABA & CA urge 50 hrs for truly indigent
3. Must reject if:
a) Violate law/disciplinary rule if take
b) Not in physical/mental shape (competence) or Overbooked
c) Require frivolous argument (violate candor)

Back 37

accepting representation

Front 38

competence and reasonable things:

1. Client decides – substantive rts (must be present for plea bargins)
2. Lawyer decides – procedure & legal strategy
3. If disagree, atty can limit representation w/ client consent

Back 38

scope of representation

Front 39

competence and reasonable things:

1. Diligently, promptly, zealously pursue case to completion/end

Back 39

duty of diligence

Front 40

comptence adn reasonable things:
1. Settlement offers
a) If joint clients, tell all & all agree
2. Return phone calls
3. Personally communicate (watch out for client interpreter or secretary solely)

Back 40

duty to communicate - keep client informed

Front 41

competence and reasonable things:

1. Client fires
a) Can still get contingent fees, quantum meruit
b) Payment per hr if fired instead of contingent ok if not penalty
2. Mandatory w/drawal
a) Continuing violates law/disciplinary rule (not competent)
b) Client uses svs to commit crime/fraud

Back 41

duty on withdrawal

Front 42

competence and reasonable things:

a) ABA: may w/drawal for any reason if it won’t materially harm client
(1) Or if F.A.I.R.
(a) Financial burden (not in CA unless K breach for fees)
(b) Acts illegally (past crime) (not in CA)
(i) ABA: noisy withdrawal
(c) Insists on objective you find gross
(d) Refuses to fulfill obligation after you warned you’d w/draw
(i) K agreement that refusal of settlement offer grounds to w/draw ok
(2) Ct can deny if cause undue delay/disruption

Back 42

duty of withdrawal: permissive withdrawal

Front 43

competence and reasonable things:

a) Timely notice to client
b) Promptly return
(1) Unspent fees/advances (trust acct)
(2) ALL papers & property of client
(a) Includes work product
(3) CA – can’t keep until paid

Back 43

duty of withdrawal: procedure for withdrawal

Front 44

competence and reasonable thigns:

1. Be reasonable & sensible
2. Sexual relations w/client
a) ABA: NO even if consensual & no harm to representation
b) CA - NO if it screws things up (harass, extort, rape, makes you stupid, affects representation; cannot require/demand as a condition to emp)

Back 44

other duties

Front 45

candor:

1. Intermediate scrutiny - may regulate if
a) Gov’t asserts substantial interest
b) Regulation directly advances that interest
c) Reg is narrowly tailored

Back 45

atty ads/solicit

Front 46

candor:

1. Communication w/ public at large
a) Can’t mislead or omit material info
b) Can’t raise unjustified expectations
c) Can’t make unverifiable comparisons
2. CA – NO ads w/ guarantees, warranties, predictions of result
a) No testimonial unless EXPRESSLY declaim - say not G, W, P

Back 46

advertising

Front 47

candor:

3. Legal specialty ads
a) Can explain field of practice
b) Trad’l
(1) Patent & Admiralty ok
c) Modern
(1) Certified specialist by:
(a) Cal Bd
(b) ABA approved pvt group
(c) Or id clearly as org not approved by state

Back 47

advertising

Front 48

4. Can’t claim false partnerships/affiliations
a) CA: presumed violation if private practitioner states or imply relationship w/ gov’t agency or non-profit
5. Can’t harass or solicit someone who said go away
6. Targeted direct mail ok (truthful/non-deceptive to people w/known legal prob)
a) Must meet guidelines for ad material
7. Ad must:
a) Be labeled (mailing – first page of letter & envelope)
b) State if dramatization
c) Identify one lawyer responsible for contents
d) Kept as record w/ content & placement for 2 yrs

Back 48

advertising

Front 49

candor:

8. CA – lists specific acts presumed to be ad violation (BOP on attny)
a) Communications to client in hospital; non-labeled Ads or Testimonals

Back 49

advertising

Front 50

1. Can’t seek professional employment for $ (pro bono ok)
a) By initiating live contact or phone call
b) W/ prospective client
c) If have no prior professional/family/personal relationship
2. Can send mail as long as states it is advertising on envelope and first page.
3. Cappers & Runners & Agents cannot do anything you cannot do
4. CA – presumption communication at scene of accident/en route to med improper
5. Payment for referrals N/A except:
a) CA – ok fee splitting
b) Regular fees to authorized referral services

Back 50

solicitation

Front 51

candor:

A. Can’t be dishonest, fraud, deceit, misrepresentation
1. CA/ABA code: Cannot threaten criminal proceedings to gain advantage in civil suit
a) ABA Rules: Generally, cannot threaten, but will allow if criminal & civil liabilities are closely related and are warranted by law/facts

Back 51

duty to candor

Front 52

candor:

1. Obligation
a) To be candid about law
b) To state adverse authority if
(1) From controlling jurisdiction & Directly on point

Back 52

duty to state the law truthfully

Front 53

candor:

1. Must refuse to make false stmts of fact, offer false evidence, fail to correct
2. Can’t counsel/assist witness
a) Perjury/Become unavailable; if knows W will lie cannot put on stand
3. Can pay for witness travel, expenses, expert fee

Back 53

duty to present evidence truthfully

Front 54

candor:

4. Can’t knowingly facilitate client perjury
a) Civil cases – can refuse to put client on stand
b) Criminal – if knows for certain
(1) Client has
(a) 5th rt to testify & 6th rt to effective counsel
(2) Atty must
(a) Advise client to be truthful/not testify; if fails:
(b) ABA
(i) MUST try to w/draw from case
(ii) If fails; must tell the judge
(a) Confidentiality n/a perjury
(iii) If only learn about perjury after testimony
(a) Advise to recant
(b) Do nothing to further
(c) Obligation ends w/ proceedings

Back 54

duty to present evidence truthfully

Front 55

(c) CA
(i) May seek/attempt to w/draw
(ii) Nothing to facilitate/further perjury/deception
(a) Don’t ask questions - narrative
(b) Don’t argue in closing
(3) No discipline if put prosecution to its burden & require every element be proved beyond a reasonable doubt

Back 55

duty to present evdience truthfully

Front 56

candor:

1. Must not (or counsel client) to suppress, knowingly alter, destroy, falsify, hide
2. Must turn over fruit/instrumentality of crimes
a) W/in reasonable time
b) Includes cash for legal services
c) Don’t have to
(1) Tell what was said Or source of info
d) Interference w/ evidence
(1) Can look but not touch
(2) If touch:
(a) Must testify where found
(b) Whether moved/altered
3. Ex parte proceeding - One sided
a) Must reveal all relevant info

Back 56

duty to produce evidence

Front 57

candor:

1. Prevent client from causing death/substantial bodily injury
a) ABA & CA
(1) Permits disclosure
(2) Some jurisdictions require
2. Other crimes
a) No duty to reveal fraud unless you’d be assisting in the crime
b) Future crime/fraud exception to atty-client privilege (evidence code)

Back 57

duty to uphold law

Front 58

addl duties:

honestly at all times in all dealings
1. No false statements of fact to adversaries/3rd pty
2. Can’t violate legal rts of 3rd persons in order to obtain evidence, or use improper means to burden, delay, embaress

Back 58

duty to deal fairly with others

Front 59

addl duties:

a) Need permission (consent of counsel)
(1) Organizations – consent required if
(a) Mgmt or anyone whose stmt can be imputed to organization (admissions); or
(b) Party exposed to confidential info

Back 59

duty to deal fairly with others: communications with one who is represented by counsel

Front 60

addl duties:

(balance ’s right to fair trial against press/public right to know)
a) Avoid statements likely to materially prejudice case
b) Except
(1) Matters in public record/routine booking info
(2) Warning public/asking for help
(3) Statements req’d to protect client from undue prejudice from recent publicity NOT self-initiated
c) Prosecutors can’t make comments substantially likely to heighten public condemnation of accused

Back 60

duty to deal fairly with others: press

Front 61

addl duties:

a) ABA – affirmative duty to expedite
b) CA – must not delay
(1) To harass adversary
(2) For personal gain

Back 61

duty to expidite cases

Front 62

addl duties:

2. To follow valid procedural rules
a) Unless Good Faith effort to challenge
3. Preserve impartiality of tribunal
a) May not improperly influence anyone (i.e. jurors)
4. No disruptive conduct
a) No reference to inadmissible material
b) Don’t allude to matters unsupported by evidence
c) Don’t assert personal knowledge of facts at issue

Back 62

preserving dignity of court

Front 63

addl duties:

1. Seek justice, not win
2. Higher ethical obligations
3. Must:
a) Have probable cause
b) Protect accused rt to counsel
c) Disclose evidence favorable to Δ
d) Exercise reasonable care to prevent associates from creating prejudicial pretrial publicity

Back 63

prosecutors special duty

Front 64

addl duty:

1. No dishonesty, fraud, deceit, misrepresentation
a) Private business OR personal
2. NO unauthorized/unlicensed practice of law – cannot use non-lawyers
a) i.e. have NL negotiate w/adversary; discuss pleas w/clients
b) Cannot practice w/o license unless pro hac vice

Back 64

duties to profession

Front 65

addl duties:

a) ABA – requires report another atty/judge if:
(1) Raises substantial questions as to person’s honesty, trustworthiness, fitness
b) CA – requires self-reporting if:
(1) Charged w/ felony
(2) Found civilly liable for fraud/breach of fiduciary duty
(3) Disciplined in another jurisdiction
(4) Other difficulties

Back 65

duties to profession: report misconduct

Front 66

addl duties:

A. Ordered by supervising atty to act in violation of ethical rules
1. If clear violation – you & supervisor subject to discipline
2. If debatable – supervisor solely responsible

Back 66

duties of subordinate lawyers

Front 67

i. Continued representation would violate a law or ethical rule (e.g., if continuing would require assisting in a crime; if attorney’s physical or mental shape renders him incompetent; if attorney would have to pursue a frivolous claim);
ii. If client uses services to commit crime or fraud;
iii. The lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
iv. The lawyer is fired

Back 67

mandatory withdrawal

Front 68

1. If an attorney knows that a witness will lie in their testimony, he cannot put that witness on the stand (rule is permissive if the attorney only has a reasonable belief that the witness will lie or there is some doubt)

Back 68

lying witness

Front 69

i. Attorney must not suppress any evidence that you or client has legal obligation to reveal or produce, regardless of duty of loyalty.
1. May not obstruct access to or tamper with fruits or instrumentalities of a crime
2. Mere suggestion that a client remove an item, that the attorney does not know is evidence, is permissible. (circumstantial evidence)

Back 69

duty to produce evidence

Front 70

ii. Attorney cannot knowingly and unlawfully alter, destroy, falsify, or conceal/hide evidence OR counsel his client to do so

Back 70

duty to produce evidence

Front 71

iii. If an attorney is reasonably certain that something given to him by the client and in his possession is a fruit or instrumentality of a crime, he must turn it over to the authorities (e.g., police, DA) in a reasonable time (e.g., can do tests or authenticate it first) [duty of candor to court and confidentiality conflict]
1. This is true even if the fruit or instrumentality is cash paid to the attorney for legal services
2. Attorney may not disclose where he received the item or what was said to him by the client about the fruit or instrumentality (duty of confidentiality)

Back 71

duty to produce evidence

Front 72

iv. Lawyer learns about the location of real evidence from an attorney-client privileged communication, but does not take possession
1. No turn over duty
2. No disclosure duty

Back 72

duty to produce evidnece

Front 73

v. Lawyer learns about the location of real evidence through an attorney-client privileged communication and then removes the evidence from its original location or alters it he then must:
1. Turn over duty
2. Must disclose the original location and condition of the evidence

Back 73

duty to produce evidnece

Front 74

vi. Lawyer takes possession of an item from a third party
1. Turn over duty
2. Disclosure duty

Back 74

duty to produce evidence

Front 75

“doing things that call for the professional judgment of a lawyer”) – Use of Non-Lawyers!
1. Lawyer may not engage in the unauthorized (or unlicensed) practice of law (in order to safeguard the public from incompetence)
2. A lawyer is subject to discipline for assisting/using a nonlawyer to engaged in the unauthorized practice of law (e.g., having paralegals negotiating with insurance adjusters; discussing proposed settlements with clients; explaining releases and executing legal documents)
a. It is permissible for nonlawyers to perform investigation and witness interviews, however

Back 75

unauthorized practice of law