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75 Cards in this Set

  • Front
  • Back
C Clients  Confidentiality
L Love Loyalty
F Fierce Fiduciary responsibility
C Counsel Competence & reasonable things
duty owed to clients
C Courts  Candor/truthfulness
F Feel Fairness
D Differently Dignity/decorum & reasonable things
duty owed to tribunal
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
duty of confidentiality to your client
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
duty of confidentiality to your client: exceptions
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
duty of confidentiality: attorney/client privilege diminished
evaluate as conflicts arise (disclose, consent, or withdraw if consent  reas)
duty of loyalty
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
duty of loyalty
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
duty of loyalty: imputed disqualifications
1. Refuse representation
2. Advise get new or separate counsel
3. Withdraw
duty of loyalty: remedy
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
duty of loyalty: conflicts between atty and client
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
duty of loyalty: conflicts beteween atty and client: business transactions and adverse interests
3. Using client info against client violates DOL & DOC
duty of loyalty: conflicts between atty and client
a) ABA
(1) Only after representation ended
b) CA
(1) Discouraged, but ok if judge finds client understands/consents
duty of loyalty: conflicts between atty and client:

pubilcation rights contracts between atty and client
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
duty of loyalty: conflicts between atty and client:

loans and advances
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
duty of loyalty: conflicts between atty and client:

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
duty of loyalty: conflicts between atty and client:

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)
duty of loyalty: conflicts between atty and client:

relations with other side atty
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
duty of loyalty: conflicts between atty and client:

trial counsel necessary witness
a) Two clients w/inconsistent positions in different cases – ok w/consent
duty of loyalty, client conflicts:

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

no actual conflicts
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
duty of loyalty: client conflicts:

multiple clients in same matter
e) If potential conflict becomes actual  cannot represent! Advise about conflict, then must withdraw entirely or from party that doesn’t have info
duty of loyalty, client conflicts:

multiple clients in same matter
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
duty of loyalty, client conflicts:

new clients in matters related to former clients
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
duty of loyalty, client conflicts:

new clients in matters related to former clients
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
duty of loyalty, 3rd party conflicts
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)
duty of loyalty, 3rd party conflicts - Organizations
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
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
contingent fees
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
amount of fee
duty of fiduciary to client:

attys in firm ok
fee splitting
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
fee splitting with attorney outside firm
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
fee splitting with on atty
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
no partnership with non attys provdiing legal service
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
client trust account
competence and reasonable things:

1. = Legal knowledge, skill, thoroughness & preparation reasonable necessary for the representation (can learn the law or seek outside help)
duty of competence
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
failure to render competent services subject to:
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)
accepting representation
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
scope of representation
competence and reasonable things:

1. Diligently, promptly, zealously pursue case to completion/end
duty of diligence
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)
duty to communicate - keep client informed
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
duty on withdrawal
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
duty of withdrawal: permissive withdrawal
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
duty of withdrawal: procedure for withdrawal
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)
other duties

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

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

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
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

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

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
duty to candor

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

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
duty to present evidence truthfully

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
duty to present evidence truthfully
(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
duty to present evdience truthfully

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
duty to produce evidence

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)
duty to uphold law
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
duty to deal fairly with others
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
duty to deal fairly with others: communications with one who is represented by counsel
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
duty to deal fairly with others: press
addl duties:

a) ABA – affirmative duty to expedite
b) CA – must not delay
(1) To harass adversary
(2) For personal gain
duty to expidite cases
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
preserving dignity of court
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
prosecutors special duty
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
duties to profession
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
duties to profession: report misconduct
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
duties of subordinate lawyers
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
mandatory withdrawal
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)
lying witness
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)
duty to produce evidence
ii. Attorney cannot knowingly and unlawfully alter, destroy, falsify, or conceal/hide evidence OR counsel his client to do so
duty to produce evidence
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)
duty to produce evidence
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
duty to produce evidnece
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
duty to produce evidnece
vi. Lawyer takes possession of an item from a third party
1. Turn over duty
2. Disclosure duty
duty to produce evidence
“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
unauthorized practice of law