California Bar Exam 2010 Professional Responsibility

Front 1

1) What can't an attorney do in connection with character investigation?

Back 1

(1) Knowingly make false statement of material fact
(2) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or
(3) Knowingly fail to respond to a lawful demand for information from an admission or disciplinary authority

Front 2

2) What may a lawyer generally not do?

Back 2

(1) Violate or attempt to violate the rules of professional conduct, knowingly assist or induce another to do so, or use the acts of others to commit a violation

(2) Commit a criminal act that reflects adversely on the lawyer's honesty or fitness as a lawyer in other respects

(3) State or imply an ability to improperly influence a govt agency or official or achieve results by illegal or unethical means

(4) Engage in conduct involving dishonesty, fraud, or misrepresentation

(5) Engage in conduct prejudicial to the administration of justice

(6) Knowingly assist a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law

Front 3

3) Is a federal ct required to suspend an attorney because he has been suspended from practice in state ct?

Back 3

No. Each fed ct (including bk cts) has statutory and inherent jurisdiction to discipline members of its bar independent of any action taken by the state in which the fed ct sits

Front 4

4) Where is a lawyer subject to regulation?

Back 4

Where he offers legal services or is admitted to practice

Front 5

5) What jurisdictions laws will govern a lawyers conduct?

Back 5

(1) In a particular proceeding: ct will apply laws of jurisdiction in which it sits

(2) The disciplinary authority: will apply laws of jurisdiction
(a) Where the predominant effect of the conduct occurred if different than where the conduct occurred

Front 6

6) When is a lawyer violating the unauthorized practice of law rules?

Back 6

When
(1) Practicing law in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction and

(2) Assisting a person who is not a member of the bar in performance of an activity that constitutes the unauthorized practice of law

Note: In CA it is a misdemeanor to practice law in the state without being admitted to bar

Front 7

7) When may a nonlawyer engage in occupations that involve a special knowledge of law in certain areas?

Back 7

When the professional judgment of a lawyer is not involved (lay tax adviser preparing returns, real estate broker filling in blanks on standardized contract)

Front 8

8) If a lawyer is not licensed in a state what is he prohibited from doing?

Back 8

(1) Opening a law office in that state
(2) Holding herself out as practicing in that state

(3) Establishing a systematic and continuous presence in that state

Front 9

9) When may a lawyer practice in a state he is not licensed in on a temporary basis?

Back 9

When admitted to practice in one state and not disbarred or suspended in any state and

(1) Associates with local lawyer who participates in the matter

(2) Pro hac vice appearance

(3) Mediation or arbitration arising out of practice in home state:

(4) Other temporary practice arising out of practice in home state: if out of state practice is reasonably related to in state practice

Front 10

10) When may a lawyer practice in a state he is not licensed in on a permanent basis?

Back 10

When admitted to practice in one state and not disbarred or suspended in any state and

(1) The lawyer is a salaried employee of her only client (in house)

(3) The legal services are authorized by federal or local law

Front 11

11) When may a person serve as in house counsel without being licensed in California?

Back 11

If L
(1) Registers with Cal Bar
(2) pays annual dues
(3) Complies with certain educational, character and disciplinary measures

Front 12

12) What are limitations on un licensed in house counsel in Cal?

Back 12

(1) Cant make ct appearances or engage in other acts that require pro hac vice admission

(2) Cant represent employer's officers etc as individuals

Front 13

13) What rules are imposed on an unlicensed legal services attorney in Cal?

Back 13

(1) May practice for max 3 years with out passing Cal bar and MPRE

(2) Must work under the close supervision of Cal lawyer

(3) Register with state bar

(4) Pay annual dues

(5) Must comply with educational, character and disciplinary measures

(6) If L failed the Cal bar exam within 5 years preceding his application to practice as legal services attorney he is not eligible

Front 14

14) May a full time judge practice law?

Back 14

No

Front 15

15) May a lawyer practice law in association with, or share fees with, a non lawyer?

Back 15

No

Note: L can delegate tasks to law clerk, intern, paralegal etc...but L must supervise the work and ultimately be responsible for results

Front 16

16) What restrictions exist on creating law firms that include non lawyers?

Back 16

Non lawyer cannot
(1) Own an interest in the firm
(2) Non lawyer cannot be partner, corporate officer, or director
(3) Nonlawyer cannot have right to direct or control L's professional judgment

Front 17

17) What restrictions exist on naming a law firm?

Back 17

(1) Name cant be misleading
(2) Name of L holding public office cant be used in name of law firm or in communications on its behalf during any substantial period in which the L is not actively and regularly practicing with the firm

(3) Multistate law firm must list name of lawyers not licensed to practiced in that particular jurisdiction

Front 18

18) When may L share fees with a non lawyer?

Back 18

(1) An agreement to provide for the payment of money, over a reasonable period of time after a L's death, to L's estate or specified persons

(2) Payment of the purchase price of law practice to the estate or representative of a deceased, disabled, or disappeared L

(3) Payment pursuant to compensation or retirement plan (even though plan funded by legal fees)

(4) Sharing court awarded legal fees with a non profit organization

Front 19

19) May L hold a position in a legal services organization if the organization serves persons having adverse interests to a C of L?

Back 19

Yes

L must not knowingly participate in a decision that would
(a) be incompatible with L's obligation to C

(b) When decision would have a material adverse affect on the representation of a C of the organization whose interests are adverse to a client of L

Front 20

20) When will a lawyer be responsible for another lawyers violations of the Model Rules?

Back 20

(1) If L orders or ratifies the conduct involved or

(2) L is a partner or similar manager of the law firm in which the other lawyer practices or

(3) Has direct supervisory authority over the other lawyer and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action

Front 21

21) When will a lawyer be disciplined for the misconduct of another lawyer in California?

Back 21

If they approved the misconduct or knew about it and did nothing to prevent it

Front 22

22) When may L sell a law practice or an area of a practice under the Model Rules?

Back 22

(1) The entire practice (or area of practice) is sold to one or more lawyers or law firms
(2) The seller ceases the private practice of law, or ceases in the particular area of law, in the geographic territory in which he formerly practiced

(3) Client fees do not increase because of sale

(4) Seller notifies each C of the sale and of C's right to hire a different L or take possession of the client's file

Front 23

23) When may L sell a law practice or an area of a practice in Cal?

Back 23

(1) Cal does not require L to cease practicing in the geographic territory in which he formerly practiced

(2) In Cal only the entire practice may be sold

(3) Seller may retain a few clients who pose a conflict of interest for the buyer or who have long relationships with seller

Front 24

24) What restrictions with regard to advertising are imposed on a lawyer?

Back 24

Any communication about L or his services can't be false or misleading

Front 25

25) When is a communication false or misleading?

Back 25

(1) If 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

Front 26

26) What identifying information must be included in attorney advertisements?

Back 26

Name and office address of at least one lawyer or law firm responsible for its contents

Front 27

27) May a lawyer pay people for recommending him

Back 27

Generally no. Can pay for:

(a) Designing and running ads
(b) Usual fees charged by a legal service plan or qualified lawyer referral service

Front 28

28) When may a lawyer enter into a reciprocal referral arrangement with another lawyer or non lawyer professional?

Back 28

if arrangement is non exclusive and L explains the arrangement to C when making referral

Front 29

29) what type of information may be disseminated in an advertisement under the Model Rules?

Back 29

(1) Name of L or her firm
(2) L or firm's telephone number
(3) Types of services L will undertake
(4) The basis on which fees are determined
(5) L's foreign language ability
(6) Name of references

Front 30

30) What additional restrictions does California place on advertisements?

Back 30

L cant
(1) Make guarantee or warranty of the outcome of a case
(2) Words or symbols that suggest quick cash or quick settlement
(3) An impersonation of L or client without disclosing that it is an impersonation
(4) A dramatization of an accident or other event without disclosing that it is a dramatization
(5) A contingent fee offer that does not warn that C who loses a case must still pay litigation costs if that is the arrangement

Front 31

31) What communications are presumed to be false or misleading in CA?

Back 31

(1) Communication delivered to a potential C who is in the hospital or who is suffering from physical or mental stress

(2) Mailings that seek fee paying work and that are not clearly labeled as advertisements

(3) Communications containing testimonials or endorsements without disclaimer that testimonials or enforcements are not a promise about the results in the potential C's case

Front 32

32) What is the general rule regarding attorney solicitation of clients under the Model Rules?

Back 32

L may not seek fee paying work by initiating personal or live telephone contact or real time electronic contact with a perspective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional connection

Note: L must not use agents to solicit in a manner that L could not herself solicit

Front 33

33) May L solicit prospective clients when pecuniary gain is not a significant motive for the solicitations?

Back 33

Yes

Front 34

34) May a lawyer send targeted mail solicitations to prospective clients who the lawyer knows face specific legal problems?

Back 34

Yes.absent actual knowledge that the prospective client does not wish to receive communications from the L

Front 35

35) When is a lawyer harassing a prospective behavior?

Back 35

(1) Harassing or coercive
(2) Soliciting a prospective client who has indicated he does not want to be solicited

Front 36

36) Written or recorded communications with prospective clients who are known to need specific legal services must be labeled ____?

Back 36

Advertising Material

Front 37

37) What solicitation is permitted in connection with group and prepaid legal services plan?

Back 37

(1) L must personally connect a group that proposes to adopt a prepaid or group legal services plan

(2) The plan may itself make personal and live telephone contact with prospective subscribers who are not known to need specific legal services

Front 38

38) What communications may lawyers make regarding their field of practice?

Back 38

(1) May tell public in which field of law L does or does not practice

(2) May call themselves patent lawyer if admitted to practice before the USPTO

(3) May call themselves proctor in admiralty if practicing admiralty law

(4) L may hold herself out as a certified specialist if
(a) the organization that granted the certification has been approved by the state bar and accredited by the ABA and
(2) her communications clearly identify the organization that certified her

Front 39

39) Is a lawyer required to do public interest legal service?

Back 39

No but the Model Rules suggest L should aspire to do 50 pro bono hours per year

Front 40

40) When may L avoid appointment by a tribunal to represent a client/

Back 40

Good cause (violation of model rules, unreasonable financial burden)

Front 41

41) May L seek the appointment of a guardian or take other protective action with respect to the client?

Back 41

Model Rules: yes, if L reasonably believes that C cannot adequately act to protect herself from substantial harm

Cal: L can't seek appointment of guardian if its against C's wishes

Front 42

42) When may a lawyer act on behalf of a person with diminished capacity even though an attorney-client relationship cannot be established?

Back 42

When health, safety, or financial interest of a person with seriously diminished capacity is threatened with imminent and irreparable harm

Front 43

43) When does a concurrent conflict of interest exist?

Back 43

(1) The representation of a client be directly adverse to the interests of another client

(2) There is a significant risk that the representation of a client will be materially limited by L's personal interests or by the interests of another client, former client, or third person)

Front 44

44) When may a lawyer represent a client with a concurrent conflict?

Back 44

(1) If L reasonably believes he can competently and diligently represent each affected C

(2) The representation is not prohibited by law

(3) The representation does not involve the assertion of a claim by one client against anotehr client who is represented by the L in the same case pending before a ct or other tribunal

(4) each affected client gives informed written consent

Cal differences
(1) Does not contain a reasonable lawyer standard standard (C can consent to any conflict)
(2) Applies to potential and actual concurrent client conflicts

(3) It requires written disclosure ((as opposed to written consent)

Front 45

45) When is a conflict un consentable under the Model Rules?

Back 45

(1) If a reasonable lawyer looking at the facts would have to advise an affected client not to consent

(2) IF a L's duty of confidentiality to one C prevent him from disclosing information that the other C needs to understand the conflict of interest

Front 46

47) If a lawyer in a firm faces of conflict of interest how does that impact his firm?

Back 46

Generally the conflict is imputed on his whole firm

Front 47

48) When may a disqualified lawyer be screened out to avoid imputation?

Back 47

The prohibition is based on Model Rule 1.9 (a) and (b) (Former clients), the conflict arises out of L's association with a prior firm and

(1) Disqualified L is timely screened from any participation in the matter

(2) The disqualified L is apportioned no part of the fee from the matter

(3) Written notice is promptly given to affected former C (describing prior L's prior representation)

(4) Certification of compliance with the screening procedures are provided to the former C (upon request of C and termination of screening procedures)

Front 48

49) Does California permit screening in the private law context?

Back 48

Its not expressly recognized

Front 49

50) When may L enter into a business transaction with C or acquire an ownership or pecuniary interest adverse to C under the Model Rules?

Back 49

(1) The transaction and terms in which L acquires the interests are
(a) Fair and reasonable to C and
(b) Fully disclosed and transmitted in writing to C (in a manner that can reasonably be understood)

(2) The client is informed of desirability and given chance to seek advice of independent legal counsel on the transaction and

(3) C consents to L's role in the transaction and gives informed consent in writing

Front 50

50) When may L use information relating to the representation of C to the disadvantage of C?

Back 50

When C gives informed consent

Front 51

51) May a lawyer solicit a substantial gift from C or prepare a instrument giving L or a person related to L a substantial gift?

Back 51

No

Exception: If C is related to L

Cal: L is prohibited from inducing gift

Front 52

52) May L, prior to the conclusion of representation of C, negotiate for or make an agreement giving L literary or media rights based, in substantial part, on information relating to the representation?

Back 52

Model Rules: No

Cal: Yes (trial judge must make sure that C understands conflict and then C may waive it)

Front 53

53) May L provide financial assistance to C?

Back 53

Model Rule; Not in connection with litigation
(1) Exceptions:
(a) May advance court costs and expenses of litigation, the repayment of which is contingent on the outcome

(b) May pay court costs and expenses of indigent client

California: similar with regard to litigation expenses
(1) applies in all contexts not just litigation
(2) Prohibits L from buying potential C with a promise to pay the potential C's business or personal debts

(3) Permits L to lend money to C for any purpose after L is hired if C gives written promise to repay

Front 54

54) May L accept compensation from a person other than C for representing C?

Back 54

Generally no

Exception:
(1) C gives informed consent (In writing in Cal)

(2) There is no interference with L's independence of professional judgment or with L-C relationship
(3) Information relating to the representation of C is protected

Front 55

55) When may an L representing multiple C's enter an aggregate settlement (or aggregate agreement to plead guilty or no contest)?

Back 55

(1) each C must give informed consent in writing

(2) L's disclosure must explain the existence of all nature of all the claims or please involved and of the participation of each person in the settlement or agreement

Front 56

56) When may L make an agreement prospectively limiting malpractice liability?

Back 56

(1) Model Rules: If C is independently represented in making agreement

(2) Cal: never

Front 57

57) What does L have to do to settle with a former or unrepresented client?

Back 57

(1) Advise C in writing that independent counsel is desired

(2) C has a reasonable chance to consult with independent counsel

Front 58

58) Under what circumstances are lawyers closely related to each other to require informed consent of clients if they represent different clients in the same matter?

Back 58

Model Rule: If Ls related by blood or marriage

Cal: in addition to blood or marriage
(1) One L is a client of the other L
(2) The two Ls live together
(3) The two Ls have an intimate personal relationship

Note; this is personal conflict and not imputed

Front 59

59) May L acquire a proprietary interest in C's cause of action?

Back 59

Model Rules: generally no except
(1) Acquire a lien authorized by law to secure L's fees or expenses and
(2) Contract with C for a reasonable contingent fee in civil cases

Cal: does not allow lien and requires L to promptly release to C all her papers and property

Front 60

60) May L have a sexual relationship with C?

Back 60

Model Rule: no unless L and C had a prior consensual sexual relationship before the L-C relationship began

Cal: can have sexual relationship with C but can't
(1) Demand sexual relations with C as condition of professional representation
(2) Enter into sexual relationship by coercion or undue influence
(3) Representing C incompetently because of sexual relationship

Front 61

61) When does L have a conflict of interest regarding former clients?

Back 61

(1) If L represented C in the same or substantially similar matter and
(a) the interests of potential C are materially adverse to the interests of former C

(b) The firm with which L was formerly associated represented a C
(i) Whose interests are materially adverse to potential C and
(ii) About whom L had acquired material confidential info protected by Model Rules

Note C can give written informed consent to overcome conflict
(2)

Front 62

62) What information must L not use or reveal regarding former C or former firm's C?

Back 62

(1) Use info related to the representation to disadvantage former C (except as permitted or required by Model Rules or when info becomes publicly known)

(2) Reveal info relating to the representation (except as permitted or required by model rules)

Cal: L must maintain confidences and secrets of C

Front 63

63) When will L have a conflict stemming from a prospective client?

Back 63

(1) If L has C with interests adverse to prospective C in the same and substantially related matter and has received info from prospective C that could significantly be harmful to prospective C

Exceptions:
(1) There is written confirmation of informed consent given by both affected and prospective C or

(2) Disqualified L is timely screened from participation in the matter and does not share in any part of the fee

Front 64

64) May L be disqualified even if legal services were not provided after meeting with C?

Back 64

Yes if he obtained confidential info in the L-C consultation

Front 65

65) May L serve as trial counsel where he is likely to be a necessary witness?

Back 65

No. L must ordinarily refuse employment or withdraw

Front 66

66) When may L testify even though he is trial counsel?

Back 66

(1) L's testimony will relate solely to uncontested matter
(2) L's testimony will concern only the nature and value of legal services rendered to C
(3) If withdrawal of L would result in substantial hardship to C because of the distinct value of L or firm to the case

Front 67

67) May L serve as trial counsel when another L from the firm is likely to be called as witness?

Back 67

Yes unless precluded by conflict of interest rules

Front 68

68) When is L prohibited from testifying in matter in which he is trial counsel in California?

Back 68

Before a jury

Exception: may testify before jury regarding
(a) uncontested matter or the nature
(b) value of his services
(c) if C consents

Front 69

69) When must L explain the identity of C when dealing with an organization's constituents?

Back 69

When L knows that the organization's interests are adverse to those of the constituents with whom L is dealing

Front 70

70) When must a securities L make a report to a client's chief legal officer under Sarbanes Oxley?

Back 70

(1) If L becomes aware of credible evidence that C is materially violating federal or state securities laws

(2) If C has breached a fiduciary duty under fed or state law (or has committed a similar material violation of fed or state law)

Front 71

71) To whom must securities L make a report if he believes the CLO did not achieve an appropriate response from C under Sarbanes Oxley?

Back 71

(1) Board of directors
(2) Audit committee of board
(3) Committee of outside directors

Note: this reporting requirement is mandatory

Front 72

72) What confidential info may a securities L reveal to the SEC?

Back 72

Info that is reasonably necessary to
(1) Stop C from committing a violation that will cause a substantial financial injury to C or its investors

(2) Rectify such a financial injury if L's services were used to further the violation

(3) Prevent C from committing or suborning perjury in an SEC matter or lying in any matter within the jurisdiction of any branch of the fed govt

Front 73

73) What must L do if fired for complying with Sarbanes Oxley?

Back 73

Must report to C"s board of directors

Front 74

74) When does a conflict exist if a firm represents the interests of C whose interests are adverse to a C represented by formerly associated L and not currently represented by the firm?

Back 74

(1) If the matter is the same and substantially related and

(2) Any lawyer has info protected by rule 1.6 (confidentiality) and 1.9 (using or revealing info related to representation) that is material to the matter

Note: a disqualification may be waived by the affected C

Front 75

75) When does prior public employment create a conflict of interest?

Back 75

(1) L may not represent C in a matter in which L participated personally and substantially as government employee

(2) L working as govt officer learns confidential govt information about a person cant represent C whose interest are adverse to that person in a matter in which the info could be used to materially disadvantage that person

Cal: L who has participated in prosecution side of crim case cant later participate in defense side of that case

Front 76

76) How may a former govt officer be screened?

Back 76

(1) If disqualified L is screened from any participation in matter
(2) disqualified L does not share any part of fee earned in matter
(3) The appropriate govt agency is promptly notified of screening arrangement

Cal: allows this for crim cases and by case law in civil cases

Front 77

77) What must a current government L do in addition to complying with conflict of interest rules to under take a govt assignment that involves a matter in which L participated personally and substantially before entering govt services?

Back 77

Obtain informed written consent of the appropriate govt agency

Front 78

78) May L who is current govt employee negotiate for private employment with a party in a matter in which L is participating personally and substantially?

Back 78

No

Front 79

79) When may L represent C in a matter in which L participated personally and substantially as a judge, other adjudicative officer, or law clerk?

Back 79

With informed written consent of all parties

Same screening procedure as for former govt employees applies

Front 80

80) May L who is serving personally and substantially in a matter as a judge, arbitrator, mediator, or other third party neutral negotiate for future employment with a party?

Back 80

No. However, a law clerk may if he first notifies the judge or other adjudicative official

Front 81

81) What must L serving as third party neutral make clear to the parties?

Back 81

(1) Must tell parties who are not represented by their own lawyers that he does not represent any of the parties as clients

(2) Must explain difference between role as third party neutral and role of lawyer to any unrepresented parties who are novices at this form of dispute resolution

Front 82

82) What must a lawyer communicate to C regarding the fee?

Back 82

Model Rules: If L has not regularly represented C the fee must be communicated to C (preferably in writing) before or within reasonable time after commencing representation

California: requires written fee agreement if fees exceed 1000 except
(1) C is a corp
(2) C states in writing that she does not want a written fee agreement
(3) The legal services are the same kind of services that C has previously received and paid for
(4) L acted in an emergency to protect C's rights
(5) A writing is impractical for other reasons

Front 83

83) A fee must be ____ to be valid?

Back 83

Reasonable. Factors include:
(1) Time
(2) labor and skill required to perform work
(3) customary fee within the locality for similar work
(4) The amount involved and result obtained
(5) The experience, ability and reputation of L

Front 84

84) What is required for a contingent fee agreement to be valid?

Back 84

Model Rules:
(1) Must be in writing
(2) Signed by C
(3) State method by which fee is determined

Note: Under Model Rules contingent fee prohibited in domestic relation and criminal cases

Cal: silent on contingent fees in domestic relationship and criminal cases)

Front 85

85) Are referral fees permitted?

Back 85

Model Rules: No (splitting fees with outside L in proportion to the services performed is ok)

Cal: referral fees to outside L are ok if C knows all the terms and consents in writing (and total fee is not unconscionable and is not increased because of referral)

Front 86

86) What basic obligation does L have regarding competence and care?

Back 86

Model Rules: L must have legal knowledge, skill, thoroughness, and preparation reasonable necessary for representation

Cal:
(1) L has to supervise work for subordinate L's and non attorney employees
(2) Must act will reasonable diligence and promptness in representing C
(3) Must keep C reasonably informed about the status of a matter and promptly comply with reasonable requests for info

Front 87

87) What does the attorney client privilege permit L to do?

Back 87

Refuse to testify and prevent his L from testifying about confidential communications between the two or their respective agents

Front 88

88) What communications does the A-C privilege cover in the context of corporate communications?

Back 88

(1) Confidential communications between L and high ranking corporate official

(2) Between L and employee if the communication concerns a subject within the scope of employee's duties and the employee
(a) communicates with L at the direction of employee's superior and
(b) Known that the communication is to assist the corp in obtaining legal service

Front 89

89) What is the scope of the A-C privilege?

Back 89

(1) Direct communications between L and C
(2) Communications through or in presence of an agent who facilitates L-C relationship
(3) Confidential communications that are on the way to L-C relationship (even if its not ultimately formed)

Note: Only applies to communications pertaining to legal services

Front 90

90) Does a document that is not privileged in the hands of C become privileged when given to L?

Back 90

No

Front 91

91) What is the duration of the attorney client privilege?

Back 91

Continues indefinitely (even if C is dead and A-C relationship has terminated)

In Cal: privilege terminates when deceased C's estate is settled and his personal representative discharged

Front 92

92) What are the exceptions to the A-C privilege?

Back 92

(1) C seeks L's services to enable or aid anyone to commit a future crime of fraud
(2) The communication is relevant to an issue of breach of duties arising out of the A-C relationship

(3) Civil litigation between 2 parties who were formerly joint C's
(4) L can furnish evidence about the competency or intention of C who has attempted to dispose property by will or inter vivos transfer

California additional exception
(6) If L reasonably believes that disclosure is necessary to prevent a criminal act that L reasonably believes is likely to result in substantial bodily injury or death

Front 93

93) What is the duty of confidentiality?

Back 93

L must not reveal information relating to a representation of C

Note: applies even if information is acquired before or after the relationship existed

Note 2: duty continues to apply after the L-C relationship has terminated

Front 94

94) What exceptions exist to the duty of confidentiality?

Back 94

Model Rules: L may reveal info if
(1) If C gives informed consent
(2) Disclosure is impliedly authorized in order to carry out representation
(3) L reasonably believes it is necessarily to present a person's reasonably certain death or substantial bodily harm
(4) Necessary to prevent C from committing a crime or fraud that is likely to cause substantial financial loss to a person (if C has used Ls services to commit crime or fraud or it is necessary to rectify or mitigate the financial loss)

(5) Required by final order of ct, ethics rules, statutes
(6) Necessary to collect fee or protect L
(7) Necessary to obtain confidential legal advice about L's personal duty to comply with legal ethics rules

California
(1) Compelled by law or ct order
(2) To collect an attorney's fee
(3) To defend against claim of legal malpractice, ineffective assistance of counsel, or other wrongdoing
(4) L may but is not required to reveal C's confidential info when necessary to prevent a criminal act that will cause death or substantial bodily harm

Front 95

95) What duties does a lawyer owe with respect to a client's funds and property?

Back 95

(1) Funds must be kept separate from L's own property (funds must be kept in C's trust account)

(2) L must keep records of C's funds and other property

(3) L must keep C informed and delivery funds or property to C if C is entitled to receive the funds (or property0

(4) If L is in possession of property to which L or a third person has a claim and C disputes the claim L must keep the disputed portion of the funds separate

California
(1) L must preserve records of client funds or other property for 5 years after the money or property is distributed

Front 96

96) What is the lawyer's duty as an adviser?

Back 96

L must exercise independent professional judgment and render candid service

Front 97

97) What decisions are made by the client and by the lawyer during the scope of representation?

Back 97

Decisions made by C
(1) Plea to be entered in crim cases
(2) Waiver of jury trial in crim case
(3) Whether to testify in crim case
(4) Acceptance or rejection of settlement offer
(5) What expenses to incur

Lawyer: technical, legal and tactical matters

Front 98

98) May L limit the scope of his representation?

Back 98

Yes if the limitation is reasonable and C gives informed consent

Front 99

99) May a lawyer, in the representation of a client, communicate with a person he knows is represented by counsel?

Back 99

No if the communication involves the subject matter of the representation

Exceptions:
(1) Other person's counsel has granted permission
(2) Authorized by law or ct order

Note: applies even if the represented person initiated convo or consented to it

Front 100

100) When representing a client against an organization L must get the consent of the organizations counsel before talking to?

Back 100

A constituent who
(1)supervises or regularly consults with the organization's lawyers about the matter

(2) has authority to obligate the organization with respect to the matter

(3) Whose conduct in the matter may be imputed on the organization

Note: if the constituent has own L that L's consent is sufficient

Front 101

101) When representing a client against an organization must L get the consent of the organizations counsel before talking to a former employee?

Back 101

No. L must not violate the organizations legal rights (pry into privileged communications)

Front 102

102) What obligations does L have when communicating with an unrepresented person?

Back 102

(1) Not state or imply that he is disinterested

(2) Clear up misunderstanding about L's role in the matter

(3) Not give advice other than to obtain counsel if L knows that her client's interests have a reasonable chance of being adverse to those of the unrepresented person

Front 103

103) How must L respect the rights of third parties?

Back 103

(1) Cant use means that have no substantial purpose other than to embarrass, delay or burden a third person

(2) Must not use methods of obtaining evidence that violate the legal rights of such a person

Front 104

104) What must L do if he received a document relating the representation of C that appears to be confidential and privileged and L knows or should know that the document was sent inadvertently?

Back 104

(1) L must stop examining the document and notify the sender so the sender can take protective measures

(2) If disclosure takes place in fed proceeding or to fed office or agency: the a-c or work product privilege is not waived if the holder took reasonable steps to prevent disclosure and rectify the error

Front 105

105) What duties does L owe with respect to making statements to other?

Back 105

L cant knowingly
(1) Make false statements of material fact or law to third persons

(2) Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by C (unless disclosure is prohibited by the Model Rules)

Front 106

106) How must L conduct the litigation?

Back 106

(1) Cant make frivolous claims or defenses

(2) L must make reasonable efforts to expedite litigation consistent with the interests of C

Front 107

107) What duties of candor does L owe the tribunal?

Back 107

L cant knowingly
(1) Make false statements of material fact or law to the tribunal

(2) Fail to correct a false statement of material fact or law previously made to the tribunal by L

(3) Fail to disclose to the tribunal controlling legal authority that is directly adverse to the position of C and not disclosed by opposing counsel

(4) Offer false evidence

Front 108

108) Does L have any obligation to disclose harmful facts to the tribunal?

Back 108

No. L must only disclose harmful legal authority if other counsel has not done so

Front 109

109) May L offer evidence that he thinks may be false?

Back 109

Yes. L is only prohibited from introducing evidence he knows is false

Front 110

110) What must L do if C insists on offering evidence that L knows is false?

Back 110

(1) Try to convince C that the evidence should not be offered

(2) If that fails L should refuse to offer the evidence

Note: L may ask the ct for permission to withdraw but is not required to withdraw unless the L-C relationship has become so strained that he cannot competently represent C

Front 111

111) May L refuse to offer evidence that he reasonable believes is false?

Back 111

Yes. Except for testimony of D in criminal case

California: L must allow criminal defendant C to testify in a narrative fashion, even if L reasonably believes the testimony is false

Front 112

112) What must L do if he discovered that he has offered false evidence?

Back 112

Must take reasonable remedial measures

(1) L must speak confidentially with C to warn that person of L's duty to reveal false evidence and to seek C's cooperation with withdrawing or correcting the false evidence

(2) If that fails, L may ask tribunal for permission to withdraw

(3) As last resort, L must disclose enough info to the tribunal to set the matter straight (even info protected by A-C privilege and duty of confidentiality)

Front 113

113) What facts must L disclose in an ex parte proceeding?

Back 113

All material fats known to L that will enable the tribunal to make an informed decision even if they are adverse to C

Front 114

114) What duties of fairness does L owe to the opposing party and counsel?

Back 114

(1) L cant unlawfully obstruct access to evidence or unlawfully alter, destroy or conceal a document having potential evidentiary value

(2) Falsify evidence

(3) Knowingly disobey an obligation under the rules of a tribunal

(4) Make frivolous discovery requests (or fail to make reasonably diligent efforts to comply with proper discovery requests)

(5) In trial, allude to any matter (a) that L does not reasonably believe is relevant or will be supported by admissible evidence
(b) Assert personal knowledge of facts in issue when testifying as witness
(c) State a personal opinion as to the justness of a cause, credibility of witness, culpability of civil litigant, guilt or innocence of accused

(6) Request a person other than C refrain from voluntarily giving relevant info to the other party unless
(a) The person is a relative, employee , or agent of C and
(b) L reasonable believes that the persons interest will not be adversely affected by refraining from such info

Cal: additional rule that forbids L from threatening to bring disciplinary, administrative, criminal proceedings to gain an advantage in a civil dispute

Front 115

115) What must L do with regards to communicating with judges and the jury?

Back 115

(1) Not seek to influence a judge, juror, or prospective juror by means prohibited by law

(2) Communicate ex parte with such parties except as permitted by law

(3) Engage in conduct intended to disrupt a tribunal

Front 116

116) What may L do/not do with respect to trial publicity?

Back 116

(1) L cant make extra judicial statements that L knows or reasonably should know will be
(a) disseminated by means of public communication and
(b) Have a substantial likelihood of materially prejudicing an adjudicative proceeding

(20 L may make a statement that a reasonable L would believe is required to protect C from the substantial undue prejudicial effect of recent publicity not initiated by L or C

Front 117

117) When must L withdraw from representation?

Back 117

Model Rules:
(1) If representation will result in violation of Model Rules or other law
(2) L's physical or mental condition materially impairs L's ability to represent C
(3) L is discharged

California
(1) L knows or should know that C is acting without probable cause and to harass or maliciously injure another person

(2) the representation will result in the violation of the rules of professional conduct (but not a violation of other law)

Front 118

118) When may L withdraw under the Model Rules?

Back 118

(1) If L can withdraw without material adverse effect on the interests of C

(2) If C persists in a course of action involving L's services that L reasonably believes is criminal or fraudulent

(3) C has used L's services to perpetrate a crime or fraud

(4) C insists upon taking action that L considers repugnant or with which L has fundamental disagreement

(5) C fails substantially to fulfill an obligation to L regarding L's services and has been given reasonable warning that L will withdraw unless obligation is fulfilled

(6) The representation will result in unreasonable financial burden on L

(7) Other good cause for withdrawal

Front 119

119) When may L withdraw from representation in CA?

Back 119

(1) If C persists in a course of action involving L's services that L reasonably believes is criminal or fraudulent

(2) C insists upon taking action that L considers repugnant or with which L has fundamental disagreement

(3) C fails substantially to fulfill an obligation to L regarding L's services and has been given reasonable warning that L will withdraw unless obligation is fulfilled

(4) Other good cause for withdrawal

Front 120

120) What are permissible references with respect to trial publicity?

Back 120

(1) The claim, offense, or defense involved
(2) Info in public record
(3) That an investigation is in progress
(4) The scheduling or result of any step in litigation
(5) Identity of people involved (except when prohibited by law)
(6) A request for assistance in obtaining evidence
(7) Info necessary to apprehend suspect
(8) Warning of danger concerning behavior of a person if there is likelihood of substantial harm to an individual or the public interest
(9) Fact, time and place of accused's arrest
(10) Identity of investigating and arresting officers or agencies

(11) A statement a reasonable L would believe necessary to protect C from substantial undue prejudicial effect of recent publicity not initiated by L or C

Front 121

121) What are the impermissible references with regard to trial publicity?

Back 121

(1) Identity of witness or expected testimony of a party or witness
(2) Statements relating to character, credibility, reputation, or criminal record of party, suspect or witness
(3) Nature of physical evidence to be presented
(4) Performance or results of any examination or test, or refusal of a person to submit to test

(5) Info that L knows is likely inadmissible at trial and creates substantial risk of prejudice

(6) The fact that D is charged with a crime unless accompanied by explanation that he is presumed innocent

(7) In a criminal case, the possibility of a guilty plea, the existence or contents of a confession, or the refusal of the person to make a statement

(8) Any opinion as to guilt or innocence of a D or suspect in a criminal case

Front 122

122) When must L continue representation despite good cause for terminating the representation?

Back 122

When ordered by tribunal

Front 123

123) What must L do with respect to protect C's interests after termination of representation?

Back 123

Must take steps to extent reasonably practicable to protect C's interest

Front 124

124) Are lawyers still bound by professional standards of conduct when acting in personal or private business capacities?

Back 124

Yes

Front 125

125) May L accept government legal employment or judicial appointment if L makes a political contribution for the purposes of obtaining such employment?

Back 125

No. Exceptions
(1) L is hired for uncompensated services
(2) L is hired on the basis of L's experience and following a process that is free from influence based on political contribution
(3) L's employment is made on a rotation basis from a list compiled without regard to political contributions

Front 126

126) What kind of statements must L not make regarding a judge, or a candidate for election to judicial or legal office?

Back 126

Statements that L knows to be false or with reckless disregard for its truth of falsity regarding the qualifications or integrity of such person

Front 127

127) What special roles does a prosecutor have?

Back 127

(1) Refrain from prosecuting charge that prosecutor knows is not supported by PC
(2) Make reasonable efforts to make sure D has been advised of right to counsel and given opportunity to obtain counsel

(3) Not seek from unrepresented person the waiver of important pretrial rights

(4) Make timely disclosure to defense of all evidence or info known to prosecutor that tends to negate the guilt of accused or mitigate the offense

(5) Exercise reasonable care to prevent investigators or other persons assisting prosecutor from making extra judicial statements that the prosecution would be prohibited from making


(6) Not subpoena L to present evidence against C (unless prosecutor reasonable believes (a) Info is not privileged (b) evidence is essential (c) there is no feasible alternative)

Hint 127

(7) Refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation against D

(8) Promptly disclose new, credible, and material evidence that creates a reasonable likelihood that a convicted D did not commit the subject offense (and make reasonable investigation into possible wrongful conviction, if the conviction occurred in the prosecutor's jurisdiction)

(9) Seek to remedy a conviction when the prosecutor knows of clear and convincing evidence that D in her jurisdiction was committed of offense he did not commit (5) Exercise reasonable care to prevent investigators or other persons assisting prosecutor from making extra judicial statements that the prosecution would be prohibited from making

Front 128

128) When must L report the misconduct of another L or a judge?

Back 128

(1) If L knows that another L has committed violations of the Model Rules that raises a substantial question as to that lawyers honesty or fitness as a lawyer in other respects

(2) If L knows that a judge has committed a violation of the rules of judicial conduct

Front 129

129) When must a lawyer in California report themselves to the state bar for misconduct?

Back 129

(1) Sued for malpractice 3 times in 12 months
(2) Found civilly liable for breach of fiduciary duty
(3) Sanctioned for more than 1,000 (except for discovery sanctions)

(4) Charged with felony

(5) Convicted of certain serious crimes

(6) Disciplined in another jurisdiction