Legal Analysis - Professional Responsibility

Front 1

Duty to Advertise Truthfully and Avoid Solitication:

is any communication with the public that is a general attempt to obtain business

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Advertising

Front 2

Duty to Advertise Truthfully and Avoid Solicitiation:

is commercial speech that is protect by the first amendment, but subject to discipline if you make a material misrepresentation of law or fact, or you omit information that is necessary to make the communication as a whole not misleading.

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Advertising

Front 3

Duty to Advertise Truthfully and Avoid Solicitation:

California you cannot make a guarantee or warranty, may not suggest quick cash or quick settlement, may not impersonate a lawyer unless it is disclosed, cannot have a dramatization unless it is disclosed, and cannot make an offer for a contingent fee unless you warn the client that they will have to pay cost if they lose.

Back 3

California Distinction Advertising

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Duty to Advertise Truthfully and Avoid Solicitation:

is an individual contact with a lay person to entice them to hire you.

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Solicitation

Front 5

Duty to Advertise Truthfully and Avoid Solicitation:

No initiation of personal or live telephone contact or real time electronic contact with a perspective client unless that person is a lawyer, a former or current client, or someone with whom you have a personal, professional, or family relationship. If you can’t do this then your agents can’t do it either.

Back 5

Solicitatoin

Front 6

Duty to Advertise Truthfully and Avoid Solicitation:

absent some actual knowledge a perspective clients does not wish to receive communications from a lawyer, a lawyer may send truthful non deceptive letters to persons known to face specific legal problems as long as they are labeled advertising.

Back 6

Solicitation May

Front 7

Duty to Enter REasonable Fee Arrangments:

Need a written fee agreement if more then 1k is involved, unless your client is a corporation, your client says in writing that they don’t want an agreement, your client has previously paid for the same kind of services, it is an emergency situation, or it is impracticable. Fee agreements have to be reasonable and reasonable determined by: time, labor, and skilled required; difficulty of the matter; amount involved in terms of relief; the results you obtained; the fees that are customarily charged in the location; experience, ability, reputation as a lawyer.

Back 7

Fee Arrangments

Front 8

Duty to enter reasonable fee arrangemnets:

have to be in writing signed by the client. Have to state the method for calculating the fee. May not have contingent fees in domestic and criminal cases

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Contingent fees

Front 9

duty to enter reasonable fee arrangments:

cannot share fees with non lawyers. May not pay referral fees to non lawyers. Cannot have non lawyers participating in the ownership of your firm.

Back 9

fee arrangments

Front 10

duty to enter reasonable fee arrangments:

this is permissible in certain circumstances. Under the rules of professional conduct ok to share fees if the client consents; and the fee is proportional to the work done.

Back 10

fee splitting with lawyers

Front 11

duty of reasonable fee:

requires written consent from the client, the split cannot be unconscionable, and may not increase the total fee to the client.

Back 11

fee spliting california

Front 12

duty of reasonable fee:

If you are discharged by the client you are entitled to the reasonable value of your services.

Back 12

fee splitting with lawyers: discharge

Front 13

duty of loyalty:

a conflict exists if representation will be directly adverse to interest of another client, or there is a significant risk that your representation will be materially limited by the lawyer’s personal interest or another client; former client; or third person interest.

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Duty of loyalty

Front 14

duty of loyalty:

1. Includes: a security interest in your clients property.
2. Ok if:
a. The transaction and terms, are fair and reasonable to the client, fully disclosed, transmitted in writing, in a manner reasonable understood by the client
b. The client is told to seek independent council in writing,
c. And the client understands the lawyer’s role and gives informed written consent.

Back 14

specific conflicts: ownerhsip or financial itnerest adverse to your client

Front 15

duty of loyalty:

1. Need a client’s informed written consent to disclose this information.

Back 15

specific conflicts:

improper use of the clients confidential ifnormation or secrets

Front 16

duty of loyalty:

1. Ok to get a testamentary gift if the client is related to you.
2. California: under California cannot prepare the instrument that gives you the gift, as long as there isn’t inducement.

Back 16

specific conflicts:

inducing a gift

Front 17

duty of loyalty:

1. California: as long as your trial judge insures that the defendant fully understands the conflict the defendant can waive the conflict.

Back 17

specific conflits:

obtaining literary or media rights based on representation

Front 18

duty of loyalty:

1. A lawyer is prohibited from rendering financial assistance to the client in the context of contemplated or pending litigation
2. This includes buying a client with the promise to pay there debts.
3. Exceptions to this Rule:
a. You may advance cost and expenses of litigation.
b. May make repayment contingent on the outcome of the case.
c. May also agree to pay cost for an indigent client.
4. In CA: Ok to loan client money after you have been hired, as long as client makes written promise to repay.

Back 18

specific conflicts:

providing financial asistance to your client

Front 19

duty of loyalty:

1. CA: its ok in California as long as you get informed written consent and that it does not interfere with your attorney client relationship, does not interfere with your judgment, and able to protect the confidential relationship.
2. ABA rules: require only consent and that it does not interfere with your attorney client relationship, does not interfere with your judgment, and able to protect the confidential relationship.

Back 19

specific conflicts:

receiving compensation for someone other than a client

Front 20

duty of loyalty:

1. One lump sum from multiple parties. Cure this with informed written consent, because can be representing all parties when you get one lump sum and have to split the profit.

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specific conflicts:

aggregate settlments

Front 21

duty of loyalty:

1. As long as the client has independent representation for the agreement.

Back 21

specific conflicts:

limiting malpractice liability

Front 22

duty of loyalty:

1. CA: In California the policy holder and the insurance company are joint clients.

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specific conflicts:

insurance defense lawyer conflicts

Front 23

duty of loyalty:

1. CA and ABA: if it’s a preexisting sexual relationship is ok so long as the representation is not effected.
a. ABA: if there is not a preexisting sexual relationship then you cannot start one
b. CA: Go ahead as long as you do not demand sex as a condition of representation. May not coerce your client to have sex with you. Cannot represent someone incompetently because of the sexual relationship.

Back 23

specific conflicts:

sexual relationship

Front 24

duty of loyalty:

1. Duty is to the organization and not the employees.
2. Under Sarbane Oxley when you have credible evidence that your client or there personal are materially violating some federal or state securities law, you must report that to the chief legal officer.

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specific conflicts:

organization conflicts

Front 25

duty of loyalty:

a. If you are the chief legal officers your duty is to take reasonable steps to make your client make a reasonable response and report to securities lawyer. If the company does not take the reasonable steps then you have to report to the board, audit committee, or outside director.
b. Then you may reveal to the SCC confidential information where it is reasonably necessary to stop client from committing violation, to rectify the injury and to prevent perjury or any SCC matter or lying in any matter to government agency.
i. California cannot reveal confidential information.

Back 25

specific conflicts:

organization conflicts

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duty of loyalty:

1. When one lawyer in your law firm is conflicted then everyone in your law firm is conflicted, but may be resolved with written consent.

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specific conflicts:

imputed conflicts

Front 27

duty of competence and care:

having the legal knowledge and skill necessary for effective representation. If you don’t have it you can learn it as long it is in a reasonable time or associates someone that is experienced.

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competence

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duty of competence and care:

: reasonably diligent and prompt in doing what you do.

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care

Front 29

duty to preserve confidential finromation:

May reveal confidential information where you believe it is reasonably necessary to prevent a criminal act that you reasonably believe will likely to result in death or substantial bodily harm. If you do tell, you must,
1. You must first try to talk your client out of it.
2. And, tell them that you are going to reveal the information.

Back 29

attorney client privilege california rule

Front 30

duty to preserve confidential information:

Exceptions to confidentiality:
1. Where you have informed consent
2. Implied authorization
3. Do it to prevent death or serious bodily harm
4. To prevent a crime or fraud that may cause substantial financial loss
5. Where it is required by court order or statute.
6. where it is necessary to get your money
7. Where it is necessary to obtained advice on how to comply with ethical rules.

Back 30

attorney client privilege aba rules

Front 31

duty not to aid the unauthorized practice of law:

a. Determining whether or not something encompasses the professional judgment of a lawyer. Anything that involves the professional judgment of a lawyer then you must be a lawyer to complete that task. Or a lawyer may delegate tasks to paralegals and law clerks as long as you supervise the task and are ultimately responsible.

Back 31

duty not to aid the unauthorized practice of law

Front 32

duty of fair representation:

a. May not communicate with represented parties even if they initiate the contact.
i. Exceptions: where there attorney grants your permission, or otherwise authorized by law or court order.

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duty of fair representation

Front 33

duty of fair representation:

i. An attorney shall not make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.
ii. An attorney shall not fail to disclose a material fact when disclosure is necessary to avoid assisting a criminal fraudulent act by the client.

Back 33

duties to a tribunal

Front 34

duty of fair representation:

iii. An attorney shall not offer evidence that the lawyer knows to be false.
iv. An attorney shall not disclose adverse legal authority that is on point and is from the controlling jurisdiction.
v. In ex parte proceedings, the attorney shall inform the tribunal of all material facts.

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duties to a tribunal

Front 35

duty of fair representation:

i. Need to be fair to opposing parties and council.
ii. An attorney shall not obstruct another person’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.
iii. An attorney shall not falsify evidence or counsel a witness to testify falsely.
iv. Make a false statement of material fact or law to a third party.

Back 35

duties to opposing parties and council

Front 36

duties to the public:

a. Cannot commit fraud, a crime, or other serious immoral act.

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duties to the public

Front 37

duty to withdraw:

i. Whether it will violate the rules of professional conduct or other law.
ii. Where your own physical or mental condition impairs ability to represent client
iii. Or, where your client fires you

Back 37

mandatory to withdraw an decline representation

Front 38

scope of representation:

a. The client makes the ultimate decisions about her substantive rights.
b. The lawyer makes decisions on procedure and legal strategy

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scope of representation

Front 39

duty to communicate:

a. Attorney has a duty to keep his client informed about the case and any substantial developments in the litigation (including any settlement offers)

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duty to communicate