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Front 1

What are the basic ethical duties owed by attorneys?

Back 1

1) Confidentiality
2) Loyalty
3) Financial responsibility
4) Competence
5) Candor
6) Fairness
7) Dignity/decorum
Note: Clients Love Fierce Counsel; Courts Feel Differently

Front 2

What is the general duty of confidentiality?

Back 2

A lawyer can’t reveal anything related to the representation of a client without her consent.

Front 3

What is the difference between attorney-client privilege and the duty of confidentiality?

Back 3

A/C privilege is an evidentiary rule that allows a lawyer and client to refuse to testify about confidential communications. Duty of confidentiality is broader.
1) Scope: A/C privilege covers only communications pertaining to legal services
2) Source: A/C privilege applies only to info obtained from client or his agent
3) Duration: A/C privilege ends after client dies and his estate is settled

Front 4

What are the exceptions to the duty of confidentiality?

Back 4

1) Consent
2) Crimes
3) Defending yourself (e.g. malpractice suits)
4) Compelled by law, court order, or other ethical duties

Front 5

When can you reveal confidential information to prevent a crime in CA?

Back 5

A lawyer may reveal what’s necessary to prevent a crime likely to result in reasonably certain death or serious bodily injury. HOWEVER, if reasonable under the circumstances, lawyer must first:
1) Make a good faith effort to persuade client to stop, and
2) Inform the client of the decision to reveal his confidences.

Front 6

When can an attorney take on a client despite an actual or potential conflict of interest?

Back 6

1) You reasonably believe you can represent everyone effectively
2) The representation is not prohibited by law
3) The representation does not involve the assertion of one client against another client in the same case before the same court
4) You inform each affected client (subject to the duty of confidentiality), AND
5) The client consents, confirmed in writing
Note: CA requires written disclosure when the conflict arises out of the lawyers prior relationships or personal interests.

Front 7

What are the exceptions to the imputed disqualification rule?

Back 7

1) Where the conflict arises from previous government service, or
2) From a purely personal relationship that would not affect the ability of other firm members to represent the client.
Note: In these cases, an ethical wall is probably necessary.

Front 8

When may you enter into a business transaction with a client or obtain an interest adverse to the client?

Back 8

ONLY if:
1) The terms are fair to the client,
2) Fully disclosed in understandable writing,
3) The client is advised to consult an outside attorney and is given the opportunity to do so, AND
4) The client provides written consent

Front 9

May a lawyer serve on a corporate client’s board?

Back 9

No automatic bar, but strongly discouraged because it is likely to compromise duties of loyalty and confidentiality.

Front 10

May an attorney limit his malpractice liability when entering into a client relationship?

Back 10

Generally no, UNLESS the client is independently represented in making the agreement. If client later does make malpractice claim, you can settle only after written advice to client to consult outside attorney first.

Front 11

May an attorney and client enter into a publication rights contract (e.g. client sells his story to attorney)?

Back 11

1) CA: Can do before end of the proceedings, but only if judge is satisfied client clearly understands and consents
2) ABA: Not before the representation has ended

Front 12

May an attorney make loans or advances to a client?

Back 12

1) CA: no promise to pay prospective client’s debts. However, loans in all other matters okay with WRITTEN IOU
2) ABA: No financial assistance except for cost and litigation expense when representing indigent client and advance of litigation expenses in contingent fee cases.

Front 13

May an attorney draft a legal instrument that provides a gift to the attorney?

Back 13

Generally no (if gift is substantial). Exception if client is a close relative (Mom exception).

Front 14

May an attorney serve as trial counsel in litigation where she is likely to be called as a necessary witness?

Back 14

Generally no, UNLESS
1) The testimony will relate solely to an uncontested matter,
2) It will concern only the nature and value of legal services rendered, AND
3) Withdrawal will cause substantial hardship to the client because of the distinctive value of the lawyer to the case.

Front 15

May an attorney argue inconsistent positions for different clients in different matters (e.g. on the constitutionality of a law)?

Back 15

Yes, with consent of both clients. However, if either client would be disadvantaged you must withdraw.

Front 16

May an attorney take on a new client with interests adverse to a former client?

Back 16

Not without the former client’s consent.

Front 17

Hypo: Lawyer represented Client A. Lawyer has now left the firm. Is the firm prohibited from representing Client B with interests adverse to Client A?

Back 17

Imputed disqualification applies if:
1) The matters are substantially similar or the same, and
2) Any remaining lawyer has confidential, material information.

Front 18

When is a government lawyer entering private practice barred by conflicts of interest?

Back 18

1) CA: prosecutors are barred from later working on the defense of the same case.
2) ABA: If the government lawyer worked personally and substantially on the same matter (specific dispute between specific people over specific issues).

Front 19

How can a firm get around imputed disqualification when a former government lawyer in the firm is conflicted on a matter?

Back 19

1) The lawyer is screened off
2) The lawyer does not share any part of the fee in the matter (pre-arranged salaries ok)
3) Government employer is informed (no consent)

Front 20

May an attorney accept compensation from a third party (not the client)?

Back 20

Yes, but only with informed client consent. Note: duty is to the client alone.

Front 21

What are the reporting up and out rules under the ABA and in CA?

Back 21

1) CA: You MAY report up in the organization, but you are prohibited from reporting out (note: SoX preempts, so a CA lawyer can’t be disciplined for reporting out).
2) ABA: You MUST report up, and you MAY report out if those efforts failed.

Front 22

What must be included in attorney fee agreements in non-contingent fee cases?

Back 22

1) How the fee is calculated
2) What services are covered, AND
3) The lawyer and client’s duties
Note: In CA, must be in writing.

Front 23

What must be included in attorney fee agreements in contingent fee cases?

Back 23

Must be in writing, signed by client and include
1) Attorney’s percentage
2) What expenses will be deducted from recovery
3) Whether percent is taken before or after expenses

In CA, must also include
4) How work not covered by contingency fee will be paid, AND
5) That lawyers’ fees are negotiable

Front 24

When are contingent fee arrangements prohibited?

Back 24

ABA: domestic relation and criminal cases

Front 25

When are contingent fees too high?

Back 25

1) CA: Fees must not be unconscionably high
2) ABA: Fees must be reasonable

Front 26

How are fee disputes between attorneys and clients settled?

Back 26

1) CA: must submit to arbitration
2) ABA: encourages arbitration

Front 27

When may an attorney split fees with another attorney outside his firm?

Back 27

Only when the total fee is ethical and there is written disclosure and consent. ABA further requires the division to be proportional to the work done by each attorney.

Front 28

May attorneys enter into reciprocal referral arrangements with other lawyers or non-lawyers?

Back 28

Yes, provided the arrangement is not exclusive and the arrangement is explained to the client at the time of the referral.

Front 29

What result if an attorney has a disputed claim for fees or a third party has a lawful claim over client’s funds or property in attorney’s custody?

Back 29

Attorney must withhold the disputed portion in the client trust account until resolution of the claim.

Front 30

When may a lawyer take on a matter where she doesn’t know the relevant law?

Back 30

Only when the lawyer can take the time to learn it without undue expense or delay to the client, or associate with a lawyer competent in the area.
Note: this falls under the duty of COMPETENCY.

Front 31

Does an ethical violation create a presumption of malpractice?

Back 31

No, although it may be relevant evidence.

Front 32

What must an attorney do to withdraw from representing a client?

Back 32

1) Provide timely notice to the client
2) Promptly return any unspent fees and expense advances, AND
3) All material papers and property of client (including work product), even if client hasn’t paid.

Front 33

May an attorney withhold client’s materials for non-payment?

Back 33

No.

Front 34

What is the constitutional test for regulating lawyer advertising?

Back 34

1) Gov must assert a substantial interest
2) Regulation directly advances that interest, AND
3) Regulation is narrowly tailored

Front 35

What types of attorney advertisements are presumptively improper in CA?

Back 35

Ads that contain:
(1) Guarantees,
(2) Warrantees, or
(3) Predictions of a result
Note: No testimonials or endorsements may be used unless there is an express disclaimer that they are not a GWP.

Front 36

What are the general rules for attorney advertisements?

Back 36

(1) The communication must be true and not misleading
(2) It must be identified as advertising, and
(3) Identify at least one lawyer responsible for its contents
Note: You must keep records of the content and placement for 2 years.

Front 37

What is the solicitation rule for attorneys?

Back 37

An attorney may not
(1) Seek professional employment
(2) For pecuniary gain
(3) By initiating a live or telephone conversation
(4) With a prospective client
(5) With whom the attorney has no prior professional, personal or family relationships.

Front 38

What result if attorney knows client intends to commit perjury?

Back 38

Civil case: refuse to call the client as a witness
Criminal case:
(1) Counsel client to testify truthfully or not take the stand, if that fails
(2) Try and withdraw, if that fails
(3) CA: allow client to testify in narrative fashion
ABA: Tell the judge

Front 39

When may an attorney seek the appointment of a guardian for a client?

Back 39

1) CA: Never against the client's wishes
2) ABA: When the lawyer reasonably believes that the client cannot adequately act to protect herself from substantial harm.

Front 40

When does a concurrent conflict of interest exist?

Back 40

(1) The representation of a client will be directly adverse to the interest of another client, or
(2) There is a significant risk that the representation of a client will be materially limited by the interests of the lawyer, another client, or a third party.

Front 41

May a lawyer participate in making aggregate settlements or plea agreements when representing multiple clients?

Back 41

ONLY if
1) Each client gives written, informed consent
2) The lawyers disclosure explains the existence and nature of all the claims or pleas involved and the participation of each person involved

Front 42

When are referral fees permitted?

Back 42

CA:
(1) Client must know all the terms of the arrangement
(2) Consent in writing, and
(3) The total fee must not be unconscionable, and
(4) The total fee must not be increased because of the referral fee
ABA: Not allowed

Front 43

What are an attorney's duty of competence in an emergency?

Back 43

A lawyer may assist a client in an emergency even when the lawyer lacks competence in that particular area. However, the assistance cannot exceed what is reasonably necessary to meet the emergency.

Front 44

Where the client is a corporation, what is the scope of the attorney-client privilege?

Back 44

The privilege applies to confidential communications between the attorney and
(1) High ranking corporate officials, AND
(2) Other corporate employees IF
(a) the communication concerns a subject within the scope of the employees duties,
(b) the employee speaks to the attorney at the direction of his superior, and
(c) the employee knows that the purpose of the communication is to assist the corporation in obtaining legal advice

Front 45

What types of decisions does the client make? The attorney?

Back 45

1) Client: decides the objectives of the representation, e.g., plea to be entered, waiver of jury trial, whether to testify in criminal trial, acceptance of offers, expenses to incur
2) Attorney: client usually defers on technical, legal, and tactical matters, e.g., choice of motions, scope of discovery, choice of witnesses, evidence to introduce

Front 46

When must an attorney reveal her clients confidential information?

Back 46

When doing so is the only way to avoid ASSISTING the client's crime or fraud.

Front 47

In the representation of a client, may an attorney communicate about the matter with somebody he knows is represented by counsel?

Back 47

Not unless the person's counsel has agreed or the attorney is authorized by law or court order.

Front 48

What are an attorney's duties to third persons when representing a client?

Back 48

The attorney must not use
(1) Means that have no substantial purpose other than to embarrass, delay, or burden the third party, OR
(2) Methods of obtaining evidence that violate that person's legal rights

Front 49

May an attorney communicate with a third party not represented by counsel?`

Back 49

Yes, IF the attorney
(1) Does not imply that she is disinterested,
(2) Takes steps to clear up misunderstandings about her role which she should be aware, and
(3) Does not give any advice other than for the third party to get an attorney

Front 50

What is an attorney required to do under her duty of candor to the tribunal?

Back 50

The lawyer must not knowingly
(1) Make a false statement of material fact or law
(2) Fail to correct a false statement of fact or law perviously made
(3) Fail to disclose controlling legal authority that is directly adverse to the attorney's client and not disclosed by opposing counsel, OR
(4) Offer false evidence

Front 51

Must an attorney disclose harmful facts pursuant to her duty of candor to the tribunal?

Back 51

No, that's what discovery is for. Exceptions:
(1) Ex parte proceedings
(2) Where disclosure is necessary to avoid assisting client in crime or fraud, OR
(3) Prosecutors in criminal trials must disclose exculpatory evidence

Front 52

What are the rules for trial publicity?

Back 52

An attorney must not:
(1) make an extrajudicial statement (2) she reasonable should know will be disseminated
(3) that has a substantial likelihood of materially prejudicing the proceeding.
Note: Lawyer may make statement reasonable lawyer would believe is necessary to protect client against prejudicial effect of recent publicity not initiated by lawyer or client.

Front 53

When MUST an attorney withdraw from representation?

Back 53

ABA: (1) The representation will result in violation of RPC or other law, (2) Attorney's physical or mental condition materially impairs ability to represent, OR (3) discharge.
CA: (1) Attorney should know client is acting without probable cause to harass or maliciously injure a person, OR (2) Representation will violate rules of professional conduct, but NOT other laws.

Front 54

May a lawyer in CA withdraw from representation when the client has used the lawyer's services to perpetrate a crime or fraud?

Back 54

NO (contra ABA).

Front 55

May a lawyer in CA withdraw from representation when it will result in an unreasonable financial burden on the lawyer?

Back 55

NO (contra ABA)

Front 56

When must an attorney report professional misconduct of another attorney?

Back 56

ABA: Where the attorney knows that the other attorney has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty or fitness
CA: No requirement

Front 57

When must an attorney in CA report themselves to the State Bar?

Back 57

When the attorney has:
1) Been sued for malpractice three times in 12 months
2) Found civilly liable for fraud or breach of fiduciary duty
3) Sanctioned more than $1,000 (except in discovery sanctions)
4) Charged with a felony
5) Convicted of certain serious crimes, OR
6) Disciplined in another jurisdiction