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77 Cards in this Set
- Front
- Back
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The Duty of Competence 1-PR |
A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. |
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Duty of Diligence and Zeal 2-PR |
A lawyer must zealously represent his client and should take whatever "lawful and ethical" measures are required to support a client's claim. Additionally, a lawyer shall act with reasonable diligence and promptness, and must also act with commitment and dedication upon the client's behalf. |
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Scope of Representation (Ultimate Decisions) 3-PR |
The client makes the substantive decisions like whether to accept a settlement offer, while the lawyer deals with the Procedural, legal, and strategic matters such as which objections to make, which motions to file, and what evidence to introduce. |
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Counseling a Client to Violate the Law 4-PR |
A lawyer must not counsel a client to engage in conduct that the lawyer knows is criminal or fraudulent. Nevertheless, a lawyer may counsel a client to make a good faith effort to determine the validity, scope, meaning, or application of the law. Thus, a lawyer may properly advise a client on how to test the validity of a law. |
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Duty to Communicate 5-PR |
A lawyer must keep a client reasonably informed about significant developments affecting the representation. Moreover, a lawyer must explain matters to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. |
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Contingency Fee Agreements 6-PR
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A fee may be contingent on the outcome of a case. A contingent fee agreement must be in a writing signed by the client and must state: (1) the percentage that the lawyer is to receive when the case is settled; (2) what expenses will be taken out of the recovery; and (3) whether those expenses are to be deducted before or after the fee is calculated. |
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Contingency Fee is not Allowed When: 7-PR |
A lawyer may not enter into a contingent fee agreement (1) in a domestic relations matter when payment is contingent upon the securing of a divorce or upon the amount of alimony, support, or property settlement; or (2) in a criminal case. |
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Contingent Fee Agreement (California Distinction) 8-PR
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The California rule is virtually the same except that it also requires the agreement to state that the fee is not set by law but is negotiable between attorney and client. Additionally, the agreement must state to what extent the client will be charged for work not covered in the agreement. |
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Fee Agreement 9-PR |
A lawyer's fee must be reasonable. Moreover, the fee must be communicated to the client, preferably in writing. |
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Fee Agreement (California Distinction) 10-PR |
A lawyer must not charge an unconscionable fee. Unconscionability shall be determined on the basis of all facts and circumstances existing at the time the agreement in entered into. Must be in writing if fee exceed $1000; but writing is not requires: (1) in an emergency; (2) the client is a corporation; or (3) the attorney has previously rendered similar services to a regular client where there is an implicit understanding. |
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Fee Splitting 11-PR |
A lawyer may share legal fees with another attorney only if: (1) the fee is "in proportion" to the services performed by each lawyer or each lawyer assumes joint responsibility for the representation; (2) after full disclosure, the client consents in writing; and (3) the total fee is reasonable. |
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Fee Splitting (California Distinction) 12-PR |
California has no "proportionality" rule when two lawyers share a fee. In addition, the total fee charged must not increase because of the sharing of fees, and the total fee must not be unconscionable. |
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Sharing Fees with a Non-Lawyer 13-PR |
As a general rule, a lawyer may not share legal fees with a person who is not a lawyer. The rationale for the rule is to protect the lawyer's professional independence of judgment. |
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Referral Fees 14-PR |
Under the ABA, referral fees are prohibited. Thus, a lawyer who receives a referral from another attorney must not pay anything "solely" for the referral. The Rule in regard to fee splitting controls. |
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Duty of Confidentiality 15-PR |
A fundamental principle in the lawyer-client relationship is that the lawyer must not reveal any information relating to the representation without the client's consent. The duty of confidentiality applies to applies to all information relating to the representation no matter where it came from and continues to apply even after representation has ended. |
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Where a Lawyer May Reveal Confidential Information 16-PR |
A lawyer may (but is not required to) reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary: (1) to prevent reasonably certain death or substantial bodily harm; (2) to prevent future crime or fraud that is reasonably certain to cause substantial financial loss to another if the lawyer's services were used to perpetrate the fraud; (3) to establish a claim or defense in a controversy between the lawyer and the client; or (4) to comply with another ethical rule, other law, or a court order. |
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What a Lawyer Should Do Before Reveals Confidential Information 17-PR |
Where practicable, before revealing confidential information, the lawyer should first seek to persuade the client not to commit the act and inform the client of the lawyer's ability to reveal such information. Disclosure should be no greater than the lawyer reasonably believes is necessary. A lawyer's decision not to disclose, does not violate this rule since the lawyer has no affirmative obligation to reveal any information in order to prevent harm. |
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Duty of Confidentiality (California Distinction) 18-PR |
For the most part, the rule is the same except that California does not have an exception for financial crimes. Also, in California, the duty of confidentiality is found in the attorney's oath under the Business and Profession Code. |
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Inadvertent Disclosure 19-PR |
A lawyer must make reasonable efforts to prevent the inadvertent disclosure of confidential information. This is part of the duty of confidentiality. |
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Attorney-Client Privilege 20-PR |
The attorney-client privilege is a testimonial privilege that mainly applies at trial and allows the client to prevent his attorney from testifying. In comparison, the duty of confidentiality is much broader and applies to all information relating to the representation. With regard to the attorney-client privilege, as between commonly represented clients, the privilege does not attach. This is known as the joint client exception. |
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The Duty of Loyalty and Conflict of Interest 21-PR |
A lawyer owes each client a duty of loyalty and must act with the client's interest in mind. A lawyer must not represent a client if the representation involves a conflict of interest. |
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Conflict of Interest 22-PR |
A conflict exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to Another client, a former client, a third person, or by the lawyer's own personal interests. This part of the rule deals with "potential" conflicts. |
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Attorney's Representation Notwithstanding the Conflict 23-PR |
Notwithstanding the existence of a conflict, a lawyer may represent a client if: (1) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client; and (2) each client gives informed written consent. |
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Unconsentable Conflict 24-PR |
The representation is prohibited if, based on all the facts and circumstances, a "reasonable lawyer" would conclude that competent and diligent representation cannot be provided. In other word, if a disinterested lawyer would advise the client not to consent, the conflict is "unconsentable." |
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Conflict of Interest (California Distinction) 25-PR |
California does not have a "reasonable lawyer" standard. An attorney in California simply has to provide written disclosure to the client. |
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Serving on a Board of Directors 26-PR |
A lawyer may serve as a member of the board of directors for an organization that he represents. However, the lawyer should determine whether the responsibilities of the two roles conflict. If there is a material risk that the dual role will compromise the lawyer's independence of professional judgment, the lawyer should not serve as a director. |
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Business Transactions with Client 27-PR |
A lawyer may enter into a business transaction with a client or acquire an ownership interest adverse to a client if: (1) the terms are fair and reasonable and are fully disclosed in writing in a manner that can be understood by the client; (2) the client is advised to seek the advice of independent legal counsel; and (3) the client gives informed consent in a signed writing. However, this rule does not apply to standard commercial transaction. |
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Accepting Payment from a Third Party 28-PR |
A lawyer may accept compensation for representing a client from a third party only if: (1) the client gives informed consent; (2) there is no interference with the lawyer's professional judgment; and (3) the lawyer protects the client's confidences. California requires that lawyer to obtain the client's informed "written" consent. |
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Financial Assistance to a Client (Loans) 29-PR |
A lawyer must not provide financial assistance to a client except that; (1) a lawyer may advance the costs and expenses of litigation, the repayment of which may by "contingent" on the outcome; and (2) a lawyer may pay the costs and expensed of litigation on behalf of an indigent client regardless of whether these funds will be repaid. |
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Financial Assistance to a Client (Loans) (California Distinction) 30-PR |
A lawyer may not pay the expenses or debts of a prospective client. Thus, California prohibit a lawyer from "buying" a potential client. However, after the lawyer is hired, the lawyer may lend money to a client for any purpose if the client gives a written promise to repay the loan. |
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Acquiring a Proprietary Interest in Litigation 31-PR |
A lawyer shall not acquire an ownership interest in the subject matter of litigation. except that the lawyer may: (1) acquire a lien authorized by law to secure the lawyer's fee; and (2) contract with a client for a reasonable contingent fee in a civil case. |
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Sex with a Client 32-PR |
A lawyer must not have sex with a client unless the two has a prior sexual relationship. |
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Sex with a Client (California Distinction) 33-PR |
California allows a lawyer to have sex with a client so long as the lawyer does not: (1) demand sex as a condition of representation; (2) employ coercion or undue influence in entering into a sexual relationship; or (3) continue representation if the sexual relationship causes the lawyer to perform incompetently. |
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Conflicts for Former Government Lawyers 34-PR
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A lawyer must not represent a client in connection with a "matter" in which the lawyer participated personally and substantially while working for the government, unless the government gives its informed written consent. |
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Conflicts for Former Government Lawyers (Firm Disqualification) 35-PR |
When a lawyer is disqualified from representation, no lawyer in the firm may undertake representation unless: (1) the disqualified lawyer is screened off the case; (2) shares in no part of the fee; and (3) written notice is given to the government. |
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Duties to Former Clients 36-PR |
A lawyer who has formerly represented a client may not represent another person in a substantially related matter if that person's interests are materially adverse to the interests of the former client, unless the former client gives informed written consent. |
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When a Corporation is the Client 37-PR |
A lawyer employed by a corporation represents the corporation, and must act in the best interest of the organization. Generally, the lawyer must refer the matter to a higher authority in the organization; if the highest authority fails to act, the lawyer may report the violation outside of the organization. |
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Clarifying the Lawyer's Role When Corporation is Client 38-PR |
In dealing with an employee of the corporation, the lawyer must explain the identity of the client when the lawyer learns that the organization's interests are adverse to those of the person with whom the lawyer is dealing. The lawyer should advise the employee that she cannot represent him, and that the employee may wish to obtain independent representation. The lawyer must also explain that discussions between the lawyer and the individual may not be privileged. |
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Clarifying the Lawyer's Role When Corporation is Client (California Distinction) 39-PR |
California permits but does not require up-the-ladder reporting. More importantly, California prohibit "outside" reporting unless it is necessary to prevent death or substantial bodily harm. Thus, the lawyer must not violate the duty of confidentiality. |
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Mandatory Withdrawal 40-PR |
A lawyer must withdraw if: (1) the representation will result in a violation of the rules of professional conduct; (2) the client demands that the lawyer engage in conduct that is illegal; or (3) the lawyer is fired. |
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Permissive Withdrawal 41-PR |
A lawyer may withdraw if: (1) withdrawal can be accomplished without material adverse effect on the client; (2) the client has used or is using the lawyer's services to commit a crime or fault; (3) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement; or (4) the representation will result in an unreasonable financial burden on the lawyer. Upon termination, a lawyer must return all of the client's files and must take reasonable steps to protect the client's interests. |
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Offering False Evidence 42-PR |
A lawyer must not "knowingly" offer false evidence. A lawyer may refuse to offer evidence that the lawyer reasonably believes is false. However, a lawyer should resolve all doubts about the veracity of testimony in favor of the client. |
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When a Client Intent to Testify Falsely 43-PR |
If a lawyer knows that a client intends to testify falsely, the lawyer should seek to persuade the client that the evidence should not be offered. If the persuasion is ineffective, the lawyer must refuse to offer the false testimony. As a last resort, the lawyer may seek withdrawal. |
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When a Lawyer has offered Evidence and later comes to know of its Falsity 44-PR |
If a lawyer has offered evidence and later comes to know of its falsity, the lawyer must take reasonable remedial measures: (1) generally, the first step is for the lawyer to speak with the client and advise the client of the lawyer's duty of candor and seek the client's cooperation in correcting the false evidence; (2) if that fails, the lawyer may ask to withdraw; (3) if withdrawal is not permitted, the lawyer must disclose enough information to the court to remedy the situation. |
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Offering False Evidence (California Distinction) 45-PR |
In California, a lawyer may not refuse to offer the false testimony of a criminal defendant. If the defendant insists on testifying, the lawyer may allow the defendant to testify in a "narrative" fashion. There is no corresponding rule in California requiring a lawyer to take remedial measures if the lawyer learn that his client has offered false evidence. California has strict confidentiality requirements. |
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Duty of Candor to the Court 46-PR |
A lawyer must not make a false statement of fact of law to a judge or fail to correct a false statement previously made. As officers of the court, lawyers must avoid conduct that undermines the integrity of the adjudicative process. |
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Meritorious Claim (The Duty to Avoid Frivolous Lawsuits) 47-PR |
A lawyer must not bring a frivolous claim. A lawyer is required to inform himself about the facts of his client's case and determine whether he can make a good faith argument in support of his client's position. However, a lawyer may make a good faith argument for a modification or reversal of existing law. |
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Destroying Evidence 48-PR |
A lawyer must not unlawfully obstruct another party's access to evidence or counsel or assist another person to alter, destroy, or conceal anything that has potential evidentiary value. |
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Paying the Fees of an Expert Witness 49-PR |
A lawyer may advance the reasonable expenses for the services of an expert witness so long as payment is not contingent upon the outcome of the case. |
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Asking a person to Refrain from Giving Information 50-PR |
A lawyer may not request that a person refrain from giving relevant information to another party unless: (1) the person is a relative or employee of a client; and (2) that person's interests will not be adversely affected by refraining from giving such information. |
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Special Responsibilities of a Prosecutor (The "Probable Cause" requirement) 51-PR |
The prosecutor in a criminal case must refrain from prosecuting a charge that he knows is not supported by probable cause. |
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Prosecutor Must Disclose Exculpatory Evidence 52-PR |
The prosecutor in a criminal case must make timely disclosure of all evidence that is favorable to the defense whether it tends to negate the guilt of the accused or mitigates the offense. |
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Trial Publicity (Extrajudicial Statement) 53-PR |
A lawyer who is involved in a case may not make an out of court statement that the lawyer knows will be "widely disseminated" and will have a substantial likelihood of materially prejudicing the trial. |
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When a Lawyer May Make a Trial Publicity 54-PR |
A lawyer may state: (1) the claim, offense, or defense involved; (2) that an investigation is in progress; (3) a request for assistance in obtaining evidence; and (4) information necessary to aid in apprehension of the accused. Additionally, a lawyer may make a "responsive" statement to protect a client from the prejudicial effect of adverse publicity made by another party. |
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Prosecutor's Duty to Exercise Reasonable Care Over Others 55-PR |
The prosecutor in a criminal cade shall exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor from making an extrajudicial statement that the prosecutor would be prohibited from making. |
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Lawyer as Witness 56-PR |
A lawyer may not act as advocate at trial in which the lawyer in likely to be a witness unless: (1) the testimony relates to an uncontested matter, (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification would work substantial hardship on the client. In California, the rule applies only to jury trials and subsection (3) is replaced with "the member has the informed, written consent of the client" |
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Threats to Obtain an Advantage in a Civil Case 57-PR |
A lawyer must not threaten to bring criminal or disciplinary charges in order to obtain an advantage in a civil dispute. |
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Prohibited Contact with a Witness 58-PR |
A lawyer may not offer an inducement to a witness that is prohibited by law, e.g., improperly influencing a witness to testify. Furthermore, a lawyer may not compensate a witness where payment is contingent upon the "content" of the witness's testimony or the outcome of the case. However, a lawyer may pay: (1) expenses reasonably incurred by a witness in attending or testifying; and (2) reasonable compensation to a witness for loss of time in attending or testifying. |
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Communication with a Person Represented by Counsel 59-PR
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A lawyer must not communicate with a person the lawyer knows to be represented in the matter unless the lawyer has the consent of opposing counsel. The rule applies even though the represented party initiates or consents to the communication. |
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Communication with Represented Organization 60-PR |
In the case of a represented organization, a lawyer may not communicate with an employee: (1) who regularly consults with the corporation's lawyer; (2) who has the authority to bind the corporation; or (3) whose statements may be imputed to the organization, unless the lawyer obtains the consent of opposing counsel. |
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Communication with Former Employee of represented Organization 61-PR |
The rule does not apply to former employee. However, in communicating with a former employee, a lawyer may not use methods of obtaining evidence that violate the legal rights of the organization such as unwarranted intrusions into the client-lawyer relationship. Furthermore, the rule is not intended to prevent the parties from communicating with each other. |
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Truthfulness in Statement to Others 62-PR |
In the course of representing a client, a lawyer must not knowingly make a false statement of material fact or law to a third person. A lawyer is required to be truthful when dealing with others on a client's behalf. |
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Documents Sent Inadvertently 63-PR |
If a lawyer receives a document that was sent inadvertently, the lawyer must promptly notify the sender In order to permit the sender to take protective measures. Additionally, the lawyer may not use the document to her advantage and may not read the document any more closely than is necessary to ascertain whether it is privileged. |
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Duty to Supervise Employees 64-PR |
A lawyer must make reasonable efforts to ensure that a non-lawyer's conduct is comparable with the rules of professional responsibility. The lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their job |
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Unauthorized Practice of Law 65-PR |
A lawyer may not assist a non-lawyer in the unauthorized practice of law. Of course, a lawyer may employ the services of paraprofessional and may delegate certain functions to them so long as the lawyer supervises the delegated work and retains responsibility. |
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Unauthorized Practice of Law in California 66-PR
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In California, a non-lawyer may not give legal advice, appear in court on behalf of a client, or handle client funds. But there are services that non-lawyer may perform including: conducting legal research, drafting pleadings and other similar documents, and providing clerical assistance. |
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Partnership with a Non-Lawyer 67-PR |
A lawyer may not form a partnership with a non-lawyer if any of the activities consist of the practice of law. Moreover, a non-lawyer may not be an officer, director, or shareholder of a professional law corporation. |
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Solicitation 68-PR |
A lawyer must not "initiate" direct contact whether in-person, by telephone, or real-time electronic contact with a prospective client when a significant motive is pecuniary gain. This rule does not apply if the person contacted is a lawyer, a former client, a close friend, or a family member. |
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Presumed Violations of Solicitation in California 69-PR |
In California, it is a presumed violation when a communication is delivered to a potential client who is in such a physical, emotional, or mental state that he would not be expected to exercise reasonable judgment as to the retention of counsel, or a communication which is made at the scene of an accident, en route to a hospital, or in an emergency room. |
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Runners / Cappers 70-PR |
A lawyer is also prohibited from using a runner or capper to solicit business. A runner or capper is any person acting for consideration as an agent for the attorney. Hence, a lawyer cannot use another person to do something the lawyer himself cannot do. |
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Advertising 71-PR |
Under the First Amendment, lawyer advertisement is protected commercial speech. Therefore, a lawyer may advertise his services provided the communication is not false or misleading. Moreover, every advertisement must include the name and address of the lawyer responsible for its content, and must state that it is an advertisement or include the words "Advertising Material" on the outside envelope and on the first page of the letter. |
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Advertising (California Distinction) 72-PR |
California prohibits advertisements that (1) contain a guarantee or prediction; (2) suggest a quick cash settlement; or (3) state "no fee without recovery" unless it also expressly discloses whether or not the client will be liable for costs. |
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Presumed False and Misleading Communication in (California) 73-PR |
In California, a communication is presumed to be false or misleading if it is delivered to a potential client who is in the hospital of who is suffering from physical or mental stress; or mailings that are not clearly labeled as "Advertising Material." A copy of the advertisement must be kept for two years. |
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Specialization 74-PR |
A lawyer must not state that he is "certified" as a specialist in a particular field of law, unless: (1) the lawyer has been certified as a specialist by an organization that has been approved by the State Bar or the ABA; and (2) the name of the certifying organization is clearly identified in the communication. |
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Recommending a Lawyer's Services 75-PR |
A lawyer must not give anything of value to a person for "recommending" the lawyer's services except that a lawyer may enter into a reciprocal referral agreement with another professional if: (1) the agreement is not exclusive; and (2) the client is informed of the referral agreement. |
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Reporting Professional Misconduct 76-PR |
A lawyer must report the professional misconduct of another attorney when that attorney has committed a serious ethical violation. In certain situations, a lawyer in California is required to report himself to the State Bar. |
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Duty to Maintain the Integrity of the Profession 77-PR |
It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer. It is also professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Any act of misconduct reflects adversely on a lawyer's fitness to practice law. |
