California Professional Responsibility For July 2009 California Bar Exam Essays

Front 1

What are the duties owed to clients? To entities other than clients?

Acronym

Back 1

Clients Love Fierce Counsel; Court Feel Differently

CLIENTS

1 Confidentiality
2 Loyalty
3 Fiduciary Responsibilities
4 Competence

ENTITIES OTHER THAN CLIENTS

1 Candor
2 Fairness
3 Dignity/decorum

Front 2

General rule for duty of confidentiality to client

When are disclaimers valid?

Back 2

Do NOT reveal anything related to representation of client

ONLY when they are in sufficiently plain terms

Front 3

Duty of confidentiality vs attorney-client privilege

Scope, source of info, timing

Back 3

Duty is broader

Privilege is ONLY about info from client; duty is broader

In CA, privilege terminates when client's estate is settled; duty continues on

Front 4

Exceptions to the duty of confidentiality

Back 4

1 Consent, express or implied
2 Defending yourself in malpractice, ethics opinion, etc.
3 Compelled by law
4 Crimes

Front 5

ABA vs CA on the crimes exception to duty of confidentiality

Back 5

Financial crimes; CA has NO confidentiality exception, but ABA allows it IF client uses services to commit crime AND disclosure would avoid substantial financial loss

Death or substantial bodily harm

ABA & CA: atty may reveal what is necessary to prevent act if he reasonably believes disclosure is necessary

CA says, if reasonable, first make good faith effort to:
1 Persuade client to not act
AND
2 Inform client of decision to reveal confidences

Front 6

What do you do if conflict emerges after rep has begun?

Back 6

Disclose potential/actual conflicts
AND
Get further consent IN WRITING

Front 7

To avoid conflicts, atty must NOT take on rep of multiple clients UNLESS:

Back 7

Reasonable belief that he can rep everyone affected despite potential/actual conflict

Reasonableness is objective standard

Front 8

What is imputed disqualification? Remedies? What is CA distinction?

Back 8

Atty and other attys at firm share a conflict UNLESS...
--Conflict due to prior gov't service
--Conflict is personal to atty and no affect on other firm attys (mention construction of ETHICAL WALL)

Remedies: withdrawal, refuse case, recommend separate counsel

CA: Does NOT subject atty to discipline for imputed conflicts

Front 9

What are the nine likely conflict scenarios?

Back 9

1 Business transactions
2 Limiting liability
3 Publication rts
4 Loans/advances to client
5 Use of info
6 Gifts to atty/atty's family
7 Close relationship w/atty
8 Atty as witness
9 Serving on board of directors

Front 10

Conflicts

What is the test for when an atty can transact w/client or transact in business adverse to client?

Back 10

1 Fair terms to client
2 Written disclosure
3 Client consults outside atty
AND
4 Written consent

Front 11

Conflicts

What is the general rule for attys serving on BOD of corporate client? Exception

Back 11

Strongly discouraged b/c of fiduciary duty to corp, so canNOT rep another officer in action related to corp business

EXCEPT atty can be on BOD of a legal services org that is NOT his employer

Front 12

Conflicts

What is the general rule on publication rts Ks? CA distinction?

Back 12

ABA: NONE before end of proceedings

CA: No UNLESS judge allows it due to client understanding and consent

Front 13

Conflicts

What is the rule for loans/advances to clients? CA distinction?

Back 13

ABA: NO, EXCEPT litigation expenses when...
--Rep'ing indigent
--Payment and repayment for contingency fee cases

CA aspects...
--Atty canNOT pay client's debtss
--Atty CAN loan for ANY purpose after atty is hired AND client gives written promise to repay

Front 14

Conflicts

What is the rule for ability of atty to limit his liability? CA distinction?

Back 14

ABA...
--NO to preventing client from reporting ethics concerns
--Malpractice liability limitation, NO UNLESS client rep'd by separate atty

CA: NEVER EVER

Front 15

Conflicts

What is the rule for gifts to atty or atty's family? Exception?

Back 15

Atty canNOT:
--Solicit gift
OR
--Draft legal instrument creating gift UNLESS close relative

Front 16

Conflicts

What is the rule for close relationship with the opposing counsel? What is close relationship in CA?

Back 16

NO UNLESS consent

CA definition broad, includes roomates

Front 17

Conflicts

What is rule for atty as witness? CA distinction?

Back 17

ABA: NO UNLESS...
--No prejudice to client
--Testimony is UNcontested OR regards atty-client relationship
AND
--Atty is too important to withdraw now

CA (less restrictive): NO in JURY trials UNLESS written consent

Front 18

Conflicts btw clients
What is the rule for rep'ing multiple clients?

Back 18

MAY for potential conflicts with consent UNLESS conflicts are actual

Front 19

Conflicts btw clients

Where firm reps X, but firm atty didn't work on the case, can firm atty rep Y in suit against X?

Back 19

NO NEVER

Front 20

Conflicts btw clients

What is rule for opposing present client's interests? CA distinction + exception?

Back 20

ABA: May, but almost never reasonable

CA: NO, UNLESS atty reps policyholder and insurer as joint clients and insurer is merely indemnifier

Front 21

Conflicts btw clients

What is rule for atty arguing inconsistent positions for 2 different clients?

Back 21

CAN IF:
--Both consent
AND
--Current client would be injured if withdrawal

Front 22

Conflicts btw clients

What is rule for rep'ing multiple clients in same case? Civil vs crim

Back 22

Civil: Okay IF only potential conflict AND consent

Crim: NO, duty of confidentiality and 6th amendment issues

Front 23

Conflicts btw clients

What is rule for rep'ing new clients in matters related to former clients? What about imputed disqualification?

Back 23

If info from former client would be relevant to new matter, then NO UNLESS former client's consent

Imputed disqualification: Former firm matters apply to new firm IF:
--Matters are almost the same
AND
--ANY remaining atty at former firm has confidential material info on the matter

Front 24

Conflicts btw clients

What is the rule for former gov't atty now working in private practice? CA distinction? Imputed disqualification aspects? What about former judicial clerks?

Back 24

ABA: IF gov't atty worked substantially on the matter, then there IS a conflict UNLESS consent

CA: Merely applies to former prosecutors working on defense of same case

ABA exceptions to imputed disqualification...
--Atty is screened off
--Atty does NOT share in profits
AND
--Atty's gov't employer is informed

Judicial clerks, ABA rules apply

Front 25

Conflicts

What are the atty's duties under Sarbanes-Oxley? CA distinction?

Back 25

1 Report violations of securities laws to CLO
2 If case taken up, pursue; IF case not taken up, report to BOD
3 If BOD does nothing, reveal confidences to SEC

CA: Atty can ONLY report within; NO reporting to outside body; BUT fed preemption will allow CA atty to go outside anyway

Front 26

What must a non-contengent fee agreement include? CA distinction?

Back 26

ABA + CA require:
--Fee calculation
--Covered services (scope)
--Atty and client duties

CA requires more:
--In writing, with exceptions like corp client and routine services

Front 27

What must a contengent fee agreement include? CA distinction?

What kinds of cases can they not cover? CA distinction?

How to handle fee disputes? CA distinction?

Back 27

ABA + CA require:
--Atty %, and when deducted
--Expenses to be deducted from recovery

CA requires more:
--Atty fee is negotiable

**

ABA: CanNOT be used in crim and domestic relations

CA: Divorce okay SO LONG AS fee won't encourage break-up of otw salvageable marriage

**

ABA: Encourages arbitration of fee disputes
CA: Requires arbitration

Front 28

What is the rule for fee-splitting? Who can? Can't?

Referral fees? CA distinction?

Back 28

Who can?...
--Other firm attys
--Attys outside firm IF total fee is okay AND consent

Who can't?...
--Non-lawyers UNLESS non-profit who employed/recommended atty

Referral fees...
--ABA, fine
--CA, NO

Front 29

What is rule for partnerships w/non-attys? Exception?

Back 29

NO

BUT, can enter reciprocal referral agmt SO LONG AS not exclusive

Front 30

Where to place client money? Rules?

What about smaller amounts?

What to do with money if fee dispute?

Back 30

Client trust acct

NO borrowing or commingling

For smaller amount, IOLTA where remainder goes to state bar

If fee dispute, RETAIN money in acct until settled

Front 31

What is duty of competence? Can atty take on case when doesn't know the law?

Consequences of violating duty of competence?

Back 31

Using legal knowledge, skill, prepation reasonably necessary for representation

IF no knowledge of law, CAN take case IF...
--Atty can put in time to learn at NO undue burden to client
OR
--Atty associates w/knowledgeable atty

**

Discipline
Disqualification
Malpractice

Front 32

How does duty to communicate apply to settlement?

Back 32

Atty must inform ALL parties and ensure agreement on division

Front 33

Who makes decisions about what as btw atty and client?

Back 33

Atty: procedure, strategy
Client: Substance

Front 34

Ways to leave a case before matter is resolved...

Back 34

--Client fires atty
--Mandatory withdrawal for incompetency, client use of services for fraud, pursuit of frivolous claims
--Permissive withdrawal

Front 35

For what can atty permissively withdraw... (acronym)

Procedure?

Back 35

FAIR

--Financial burden to atty
--Acts illegally
--Insists on pursuing objective repugnant to atty
--Refusal of client to fulfill obligations to atty

**

--Timely notice to client
AND
--Promptly return unspent expenses/fees AND material evid

CA prohibits holding material evid until client pays

Front 36

Duties of candor to the public & dignity of the profession: ads and solicitation
What serves as limitation of ABA's ability to regulate atty ads/solicitations? What is the test?

Back 36

1st amendment rt to commercial speech

Intermediate scrutiny test

Front 37

Duties of candor to the public & dignity of the profession: ads and solicitation

General rule on ads? CA particularities?

Back 37

Ads must NOT be misleading or false

CA presumptions of improper ads that contain:
--Guarantees
--Warranties
--Predictions of result
--Testimonials that imply above 3

CA: Burden on atty

Front 38

Duties of candor to the public & dignity of the profession: ads and solicitation

Rule for claiming legal specialty?

Back 38

CanNOT UNLESS certification of specialty

Front 39

Duties of candor to the public & dignity of the profession: ads and solicitation`

Is targeted mail okay? When?

Back 39

Yes IF meets guidelines for labeling as ad materials

Front 40

Duties of candor to the public & dignity of the profession: ads and solicitation

What is the rule for solicitation? Exception?

Back 40

NO solicitation for pecuniary gain by initiating contact w/client w/whom no prior relationship

BUT, can solicit for pro bono work AND atty can solicit persons truthfully who are known to face a specific legal problem

Front 41

Duty to candor to court & fairness to adversary
What is duty?

Back 41

Duty to refuse to make false stmt of material fact, or offer evid known to be false, to tribunal, OR to not correct something that turns out to be false

Front 42

Duty to candor to court & fairness to adversary

What is rule w/re to client perjury? Civil vs crim trial?

Back 42

Rule is NO knowing facilitation of client perjury

CIVIL

CanNOT call client as witness if atty knows client will perjure himself

CRIM

Must allow testimony due to 5th amendment rt to testify

Rule is atty must take reasonable remedial measures
--Counsel client to testify truthfully OR not take stand
--Atty can try to withdraw

After end of rep, atty CAN disclose that client lied

CA: Allow client to testify in narrative fashion

Front 43

What is rule for duty to produce evid?

Back 43

NO concealment or destruction

BUT IF client tells atty where the evid is, NO duty to tell authorities SO LONG AS atty doesn't mess with evid

Prosecutors MUST produce all evid

Front 44

Can atty communicate w/client he knows is being rep'd? CA rule?

Back 44

NO

CA: Consent required to interview officer, director, manager of org

Front 45

What is rule for dealing w/press? Special rule for prosecutors?

Back 45

Atty and agents must avoid out-of-ct stmts they reasonably should know may materially prejudice case

Prosecutors must NOT make comments that heighten public condemnation of accused

Front 46

Aspects of duty to preserve dignity of ct

Back 46

NO talking to jurors UNLESS after trial w/ct permission

NO bad conduct in courtroom

Front 47

Duty to report misconduct?

Back 47

ABA: YES

CA: NO, BUT requires self-reporting

Front 48

When is atty immune from being disciplined for violation of professional standards?

Back 48

NEVER, not even in private life

Front 49

Duties of subordinate attys?

Back 49

IF atty is under control of another and he violates ethics:

--Controlling atty subject to discipline IF clear violation
--Partner responsible ONLY IF debatable problem

Front 50

Nonlawyers

Back 50

Atty canNOT use a nonlawyer to engage in te unauthorized practice of law.

Paralegals CAN research cases; but canNOT write briefs and help settle