Ca Bar Exam - Pr

Front 1

Duty of Loyalty - Concurrent conflict of interest

Back 1

A lawyer owes her client a duty of loyalty and must avoid conflicts of interest. A concurrent conlict exists when there is a significant risk that the representation of a client will be materially limited by the lawyers personal interests or by the interests of another client, former client or 3rd party.

Front 2

Duty of Loyalty - Concurrent conflict of interest ABA

Back 2

A lawyer may undertake a rep of mult clients in the same matter despite the concurrent conflict if the lawyer reasonably believes that she can competently and diligently rep. each affected client despite the conflict, and each affected client gives informed, written consent.

Front 3

Duty of Loyalty - Concurrent conflict of interest CA

Back 3

The CA rule differs from ABA:

1. There is no reasonable lawyer standard

2. It applies to potential conflicts as well as actual concurrent conflicts; AND

3. It only requires written disclosure to a client where the conflict arises out of the lawyer's prior relationship or personal interest

Front 4

Duty of Loyalty - Concurrent conflict of interest - Other Atty's in firm

Back 4

If a lawyer is disqualified from rep. a client due to a conflict of interest, other lawyers in the firm may handle the matter if:

1 The disqualified lawyer is screened from any participation in the matter;

2. The disqualified lawyer does not share in any of the fee earned; AND

3. The appropriate gov. agency is promptly notified of the screening arrangement so the agency can make sure that the screening is adequate.

Front 5

Duty of Loyalty - Concurrent conflict of interest - Government Employees ABA

Back 5

A lawyer must not rep a client in connection w/ a matter in which the lawyer participated personally and substantially as a gov. officer or comployee, unless the appropriate gov. gives IWC.

Front 6

Withdrawal

Back 6

Can't withdrawal until lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the client's rights such as giving due notice and allowing time for employment of another counsel, returning papers, property and unearned fees.

Front 7

Mandatory Withdrawal ABA & CA

Back 7

An attorney must withdrawal from rep if:

1. Continued rep will result in violation of rules

2. Atty's physical or mental condition materially impairs ability to rep.

Front 8

Mandatory withdrawal CA

Back 8

Atty knows that action is w/out probable cause and for purpose of harassing or maliciously injuring another person.

Front 9

Permissive WIthdrawal ABA

Back 9

1. Client insists on action involving lawyers service that reasonably believes in criminal/fraudulent.

2. Client used lawyers service for crime/fraud

3. Client insists on action repugnant or there is a fundamental disagreement

4. Client breaches agreement to pay and was warned

5. Rep will result in unreasonable financial burden on lawyer or is rendered unreasonably difficult by client

6. W/draw does not cause material adverse effect on clients interest

7. Good cause

Front 10

Permissive Withdrawal CA

Back 10

1. Client insists on claim/ defense not supported by good faith.

2. Client seeks illegal course of conduct

3. Client breaches agreement to pay

4. Clients conduct makes it unreasonably difficult

5. Inability to work with co-counsel

Front 11

Duty of Competence ABA

Back 11

Competent rep requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for rep. A lawyer may become competent in a certain field through adequate preparation.

Front 12

Duty of Competence CA

Back 12

A lawyer is subject to discipline if she "intentionally, recklessly, or repeatedly" fails to perform legal services with competence. Must supervise the work of subordinate lawyers and non-lawyers.

Front 13

Duty of Competence - Knowledge & Skill

Back 13

In determining whether the lawyer has the requisite knowledge and skill, relevant factors include:

1. The relative complexity & specialized nature of the matter

2. The lawyers general experience

3. The lawyers training & experience in the field in question

4. The preparation and study the lawyer is able to give the matter

5. whether it is feasible to refer the matter to , or associate or consult with, a lawyer of established competence in the field in question.

Front 14

Attorney Fees - Fee Agreement CA

Back 14

Requires a written fee agreement if the fee will exceed $1k except:

1. Client is a corp.

2. Client state in writing that she does not want a fee agreement

3. Legal services are the same kind of services that the client has previously received and paid for

4. Laywer acted in an emergency

Front 15

Attorney Fees - Fee Agreement ABA

Back 15

Does not require a non contingent fee agreement to be in writing, although it is recommended.

Any contingency fee agreement must indicate litigation and other expenses to be deducted from the recovery, and whether such epenses are to be deducted before or after the contingent fee is calculated.

Front 16

Advancing litigation fees and living expenses - ABA

Back 16

Prohibited except:

1. A lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter

2. A lawyer rep an indigent client may pay court costs and expenses of litigation.

Front 17

Advancing litigation fees and living expenses - CA

Back 17

CA rule applie in all contexts

1. Prohibits a lawyer from buying a potential client with a promise to pay personal or business debts

2. After lawyer is hired, he may lend the client money for any purpose if the client gives him a written promise to pay back

Front 18

Third party paying lawyer fee

Back 18

Prohibited except:

1. Client gives IWC

2. There is no interference with the lawyers independence and professional judgment or with the AC relationship, AND

3. Info relating to the rep of a client remains confidential.

Front 19

Lawyer paying clients expenses to 3rd party - CA

Back 19

A lawyer must obtain a clients consent before agreeing to pay the clients expenses to 3rd persons from funds collected or to be collected for the client as a result of the rep.

Front 20

Disbursement of settlement funds

Back 20

A third person may have a lawful claim against funds or other property in the lawyers custody, and the lawyer has a duty to protect the 3rd person claim from wrongful interference by the client. If the 3rd persons claim is not frivolous, the lawyer must hold separate the disputed portion of the funds or other prop until the 3rd partys claim is resolved.

Front 21

Unreasonable fee

Back 21

Factors to consider reasonableness of fee:

1. Time and labor required;

2. Novelty and difficulty of the question invovled

3. skill required to perform service; AND

4. Experience, ability, reputation of atty.

Front 22

Advertising

Back 22

Lawyer advertising must not be false or misleading. This rule applies to in person communication, mail soliciation, and telephonic or electronic communication. A lawyer may not claim to be a certified specialist unless she has been certified by an org approved by the state bar.

Front 23

Advertising - soliciation

Back 23

A lawyer may not seek fee paying work by initiating contact w/ a specific person who is not a lawyer and w/ whom the lawyer has no person, family, or prior prof relationship. A lawyer must not use an agent to contract prospective clients in a manner that would violate the rule against solicitation.

Front 24

Advertising - Payment for recommending service

Back 24

A lawyer must not give anything of value to a person for recommending the lawyers services.

Front 25

Entering into business with a client

Back 25

A lawyer must not enter into a business transaction w/ a client or knowingly acquire an ownership interest or other pecuinary interest adverse to a client unless:

1. terms are fair and reasonable and in writing so that they can be reasonably understood

2. client is given chance to seek advice of indep. counsel

3. client understands lawyers role and IWC.

Front 26

Prop or ownership for services

Back 26

Lawyer may accept prop or ownership interest in return for services, provided that this does not involve a proprietary interest in the current matter or cause of action.

Front 27

Duty of Communication

Back 27

A lawyer must keep a client reasonably informed about the status of a matter & promptly comply w/ reasonable requests for info. The lawyer must also explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the rep.

Front 28

Communicating w/ rep person

Back 28

A lawyer must not communicate about the matter w/ a person he knows is rep by counsel in the matter unless the other counsel consents or he is otherwise authorized by law.

Front 29

Communicating w/ rep org.

Back 29

The lawyer must obtain consent of org counsel. Constituent of org must have authority to speak on behalf of org.

Front 30

Duty of Confidentiality

Back 30

A lawyer must not reveal info relating to the rep of a client

Front 31

Duty of Confidentiality - ABA Exception

Back 31

A lawyer may disclose info relating to the rep of a client 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 the lawyers services to commit the crime or fraud.

Front 32

Duty of Confidentiality - CA Exception

Back 32

Atty may reveal if she reasonably believes disclosure is necessary to prevent criminal act that atty believes is likely to result in death or SBI. Atty must first make good faith effort to persuade client to not engage in criminal act and inform client that atty will reveal info. Must reveal no more than necessary to prevent criminal act.

Front 33

Duty of Confidentiality - Corp Violation

Back 33

Atty who reps org must act in best interest of org. If atty learns that someone associated with org is engaged in act or refuses to act in a manner related to the rep that is a violation of the orgs legal obligation or a violation of law which would result in substantial injury the atty must proceed as reasonably necessary in best interest of org.

Front 34

Duty of Confidentiality - Corp Violation ABA

Back 34

If the atty reports the violation to org highest authority and authority fails to take timely and appropriate action, the lawyer may report the info to appropriate persons outside the org only to extent reasonably necessary to prevent injury

Front 35

Duty of Confidentiality - Corp violation CA

Back 35

Atty may not disclose confidential infor about the violation to an outsider, unless disclosure is necessary to prevent a criminal act that will cause death or substantial bodily harm to someone.

Front 36

Duty of Confidentiality - Former client

Back 36

Atty who has rep a client in a matter may not:

1. Use infor relating to the rep to the disadvantage of the former client, except as permitted or required by the Rules ow when the info have become generally known.

Front 37

Duty of Fairness - CA

Back 37

Forbids a lawyer from threatening to bring disciplinary, adminstrative, or criminal proceedings to gain an advantage in a civil dispute.

Front 38

Duty not to assist in UPL

Back 38

Atty must not assist a person who is not a member of the bar in the performance fo an activity that constitutes UPL. The practice of law is anything that calls for the reasoning, skill, or judgment of an atty. Atty may hire a currently disbarred atty as a paralegal or legal secretary, but the ind. must not engage in practice of law.

Front 39

Failure to report ethical violations - ABA

Back 39

Atty who knows that another atty has committed a violation of rules that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate prof authority.

Front 40

Sexual Relationship - ABA

Back 40

Atty must not have a sexual relationship w/ a client unless the relationship existed prior to the AC relationship

Front 41

Sexual Relationship - CA

Back 41

Allowed unless:

1. Demands sex w/ client as a condiction of rep;

2. Coerces client into sex;

3. Rep the client incompetently b/c of sex relationship.