Prof V9.1

Front 1

Scope of rep. Client decides: AJET

Back 1

Accept or reject settlement/plea offer
Jury trial waiver
Entering plea
Testifying at trial.

Front 2

CALC-PCP

Back 2

Competence/care
Advisor
Loyalty
Communicate
Privilege - AC
Confidentiality
Protect property

Front 3

Opener

Back 3

1. Attorneys owe their clients the duties of confidentiality, loyalty, competence, and communication.
2. They owe the public and the courts the duties of candor and truthfulness, fairness, and
3. the obligation to uphold the dignity and decorum of the legal profession.

Front 4

Duty to Cooperate with Character Investigations

Back 4

An applicant/L in connection with a bar admission application must not:
1. Knowingly make a false statement of material fact,
2. Fail to disclose a fact necessary to correct a misapprehension, or
3. Knowingly fail to respond to a lawful demand for info from an admission/disciplinary authority.

Front 5

Law Firms and Nonlawyers

Back 5

Law firms may not be set up in such a way that Nonlawyer:
1. Owns an interest therein;
2. Is a partner, officer, or director;
3. Has right to direct or control L’s judgment; or
4. practices law.

Front 6

Legal Fees

Back 6

L or law firm must not share legal fees with a nonlawyer. Exceptions:
a. Pay dead lawyer's estate;
b. Purchase price of a law practice to estate;
c. Payments to a comp/retirement plan; and
d. Sharing legal fees with nonprofit org that recommended L.

Front 7

Sale of a law practice

Back 7

RPC: L may sell a law practice or an area of practice if:
1. Entire practice, or entire area of practice, sold to L;
2. Seller ceases private practice, or practice in particular area of law, in that geographic territory;
3. Client fees do not increase because of sale; and
4. Seller notifies each client of sale and right to
a. hire different L or
b. take possession of client's file.

Front 8

CA Sale of Practice Differences

Back 8

1. Seller not required to cease practicing in geographic territory;
2. Sale of an "area of practice" not permitted – "all or substantially all" of a law practice;
3. "Substantially all" provision allows L to retain few Cs who pose conflict of interest for purchaser/long relationship with seller.

Front 9

Advertising

Back 9

1. Advertising refers to a lawyer’s communication
2. with public at large or with a segment of public,
3. regarding availability of legal services.
4. Advertisements must not be false or misleading.

Front 10

False or Misleading Advertising

Back 10

State may prohibit all L advertising that is false or misleading, and subject L to discipline.
A communication is false or misleading if it:
1. Contains a material misrepresentation of law or fact, or
2. Omits information necessary to make communication as a whole not materially misleading.

Front 11

Additional CA Statutory Restrictions on advertising

Back 11

1. A guarantee of outcome of a case:
2. Words suggesting quick cash/settlement;
3. An impersonation of a L or client without disclosing that it is such:
4. A dramatization of an accident or other event without disclosing it’s such; and
5. A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that is arrangement.

Front 12

CA Rebuttable Presumptions on false advertising

Back 12

1. Communications delivered to potential client in hospital/suffering from physical/mental stress;
2. Mailings that seek fee-paying work and not clearly labeled "advertising material"; and
3. Communications containing testimonials without a disclaimer that they're not a promise about results in potential client's case.

Front 13

Solicitation

Back 13

1. lawyer-initiated contact
2. with a specific individual regarding a
3. known existing or potential legal problem,
4. for purpose of enticing individual to hire L.

Front 14

Duty of loyalty

Back 14

1. L must exercise her professional judgment solely for benefit of client,
2. free of compromising influences and loyalties.

Front 15

Conflict of interest

Back 15

L must avoid all conflicts of interest with his client.

Front 16

Concurrent Conflicts of Interest

Back 16

Under ABA Model Rule 1.7, a L must not represent a client when:
1. Representation of C will be directly adverse to interests of another client; or
2. Significant risk that representation of C will be materially limited by L’s own or other interests.

Front 17

Client Consent to Concurrent Conflicts

Back 17

Despite concurrent conflict of interest, L may undertake a representation if:
1. L reasonably believes that he can competently and diligently represent each affected client;
2. Each affected client gives informed, written consent; AND
3. Reasonable L would not recommend against consenting to conflict.

Front 18

CA differences to client consent for concurrent conflicts

Back 18

The CA RPC differs in that:
1. No "reasonable lawyer" standard;
2. Requires "written disclosure" to client.

Front 19

General Rule of Imputed Conflicts

Back 19

Generally, if L faces a conflict of interest, L’s conflict is imputed to all other L’s in firm. Does not apply to:
1. Former/current government L’s;
2. A personal interest of conflicted L if no significant risk of materially limiting representation of C by remaining L’s in firm;
3. Conflicted L’s close family relationship with another L representing different C in matter;
4. Conflicted L’s sexual relationship with C; and
5. Disqualified L’s prior association with a law firm and that L is timely screened.

Front 20

Screening of Disqualified Lawyer to Avoid Imputation of Conflict

Back 20

L’s conflict of interest not imputed to firm if based on issues involving former clients/prior firm, and:
1. Disqualified L is timely screened from any participation in matter;
2. Disqualified L apportioned no part of fee from matter;
3. Written notice is promptly given to all affected clients; and
4. Certifications of compliance with screening procedures provided to former client at reasonable intervals upon former client's written request, and upon termination of screening procedures.

Front 21

Gifts from Clients

Back 21

1. L cannot induce a substantial gift from a client unless client related to L.
2. However, L can receive such a gift if there is no undue influence.
CA: L may accept gift if fair and no undue influence.

Front 22

Designating Oneself as a B

Back 22

1. Under RPC, L must not solicit a substantial gift from C or
2. prepare an instrument giving himself, or relative, a substantial gift from C, except when C is related to L.
CA: L prohibited from soliciting gift, not preparing instrument.

Front 23

Compensation from Party Other than Client

Back 23

L must not accept compensation for representing C from 3rd party unless:
1. C gives informed consent (CA in writing);
2. No interference with L’s independence of professional judgment or with A-C relationship; and
3. Information relating to representation of C is protected.

Front 24

Limiting Liability for Malpractice

Back 24

1. L must not make an agreement prospectively limiting her liability to a client for malpractice
2. unless C independently represented in making agreement.
CA: L may not limit liability in any circumstance

Front 25

Lawyer Must Act in Best Interest of Organization

Back 25

When a person associated with organization advocates an action that may cause it substantial injury, L must protect interests of organization.
1. L must report action to a higher authority in organization, if necessary, highest authority.
2. If highest authority fails to take action, L may report info to appropriate persons outside of organization.
3. Only to extent L reasonably believes necessary to prevent substantial injury to organization.

Front 26

Fees

Back 26

RPC: When L not regularly represented C, fee must be communicated to client, preferably in writing, before or within a reasonable time after commencing representation.
CA: Requires written fee agreement if fees exceed $1,000, except when:
1. C is corporation;
2. C states in writing doesn't want a written fee agreement;
3. Legal services are same kind that C previously received and paid for;
4. L acted in an emergency to protect C's rights; or
5. A writing is impractical for other reasons.

Front 27

Fees Must Be Reasonable

Back 27

Under RPC, L’s fee must be reasonable based on such factors as
1. Time, labor, and skill required to perform work (TLS);
2. Customary fee within locality for similar work (CF);
3. The amount involved and result obtained; and (AIRO)
4. Experience, ability, and reputation of attorney (EAR).
CA: Prohibits ''unconscionable" fees.

Front 28

Contingent Fees

Back 28

A contingent fee is a fee that is dependent on successful resolution of a client's case and is payable from judgment proceeds:
1. Must be in writing signed by C; and
2. Must state method by which fee determined.
Under RPC, contingent fees prohibited in domestic relations and criminal cases.
CA: Cal. RPC silent on contingent fees in domestic relations and criminal cases.

Front 29

Referral Fees Are Unethical

Back 29

RPC: prohibit referral fees, but L may enter into a reciprocal referral arrangement with another L or nonlawyer if arrangement not exclusive and L explains arrangement to C when making referral.
CA: L may pay referral fee to an outside L who referred case if:
1. C knows all terms;
2. consents in writing; and
3. total fee not unconscionable and not increased because of referral fee.

Front 30

Fee Splitting

Back 30

Fee splitting between Ls of different firms is permitted if:
1. Total fee is reasonable,
2. C agrees to the arrangement, and
3. Either the fee is: (a) shared in proportion to the work done; or (b) Ls accept joint responsibility for representation.
4. The agreement must be confirmed in writing.

Front 31

Duty of competence and care

Back 31

1. Competent representation requires
2. legal knowledge, skill, thoroughness, and preparation
3. reasonably necessary for the representation,
4. or by associating oneself with a competent attorney.

Front 32

Duty to Communicate

Back 32

The duty to communicate requires
1. L to keep a client reasonably informed about status of a matter and
2. promptly comply with reasonable requests for information,
3. including offers to settle.

Front 33

A-CPrivilege

Back 33

1. Generally, A-C privilege allows C to refuse to testify and
2. prevent his L from testifying in court about
3. confidential communications between two or their respective agents.

Front 34

Exceptions to Privilege (CaD JeT)

Back 34

Does not apply where:
1. C seeks L’s services to enable or aid anyone to commit a future CRIME or fraud;
2. To resolve a DISPUTE between A and C;
3. Civil litigation between two persons who were formerly JOINT clients of L; or
4. Competency of C who has attempted to dispose of property by TESTAMENTARY instrument.
CA: Additionally, privilege does not apply if L reasonably believes that disclosure of C's confidence necessary to prevent crime resulting in substantial bodily injury or death of a person.

Front 35

RPC Duty of Confidentiality

Back 35

Under RPC, L must not reveal information relating to representation of client.

Front 36

RPC Exceptions to Duty of confidentiality (CAD CLEF)

Back 36

L may disclose information about client if:
1. Client gives informed CONSENT;
2. Disclosure impliedly AUTHORIZED to carry out representation;
3. L reasonably believes necessary to prevent person's reasonably certain DEATH or substantial bodily harm
4. Disclosure necessary to prevent C from committing CRIME/fraud causing substantial financial loss to person and C using/ used L’s services to commit it;
5. Disclosure required by LAW;
7. Disclosure necessary to obtain confidential legal advice about L’s personal duty to comply with legal ETHICS rules.
6. Disclosure necessary to collect a FEE or protect L; or

Front 37

CA Attorney’s Oath (LDD)

Back 37

Under CA Attorney’s oath, L promises to maintain confidences and secrets of their clients. Case law has created following exceptions:
1. Compelled by law or court order;
2. To resolve a dispute between A and C.
3. L allowed (not required) to reveal a C’s confidential information when necessary to prevent a criminal act that will cause DEATH or substantial bodily injury to someone.

Front 38

Special role of public prosecutor

Back 38

Prosecutor in a criminal case must:
1. not prosecute if charge not supported by PC;
2. Make reasonable efforts accused has right to counsel;
3. Not seek unrepresented waiver of important pretrial rights;
4. Timely disclose to defense of all evidence tending to negate guilt;
5. Prevent others from making extrajudicial statements that he prohibited from making;
6. Not subpoena L to present evidence against a C unless believes: (i) Information not privileged. (ii) Evidence essential, and (iii) No feasible alternative;
7. No extrajudicial comments that may heighten public condemnation of accused;
8. Promptly disclose new, credible, and material evidence that D did not commit offense,
9. If conviction in prosecutor’s jurisdiction, make investigation into possible wrongful conviction; and
10. Seek to remedy a conviction when clear and convincing evidence that D convicted for offense he did not commit.

Front 39

RPC Reporting professional misconduct

Back 39

Under RPC,
1. L who knows that another L has committed a violation of RPC that
2. raises a substantial question as to that L’s honesty or fitness as L in other respects,
3. even if activity removed from practice of law,
4. must inform appropriate professional authority.

Front 40

CA Reporting professional misconduct

Back 40

L may, but not required to report misconduct by another L or a judge. L required to report themselves to State Bar when:
1. Sued for malpractice three times in 12 months;
2. Found civilly liable for fraud, breach of fiduciary duty, or like;
3. Sanctioned more than $1,000 (except for discovery sanctions);
4. Charged with a felony;
5. Convicted of certain serious crimes; or
6. Disciplined in another jurisdiction.

Front 41

Duty as advisor

Back 41

L must exercise independent professional judgment and render candid service.

Front 42

Transactions with Represented Third Persons

Back 42

1. In representation of C, L must not communicate with a person
2. he believes to be represented by counsel in matter
3. unless that person's counsel or court grants permission to make direct communication.
4. Applies even if represented person initiated communication or consented to it.

Front 43

Transactions with Represented Organizations

Back 43

L must get consent of organization's counsel before communicating with employees of organization.

Front 44

Transactions with Unrepresented Third Persons

Back 44

1. When a person does not have counsel of his own,
2. L representing a client may communicate with person directly.
3. However, when dealing with unrepresented person, L must:
a. Not state/imply he’s disinterested;
b. Clear up misunderstandings about his role in matter, and
c. Not give advice except to obtain counsel if knows that her C's interests likely adverse to unrepresented person.

Front 45

Conduct during litigation

Back 45

L must not make frivolous claims or defenses.

Front 46

Candor toward the tribunal

Back 46

Under RPC, L must not knowingly:
1. Make a false statement of material fact/law to a tribunal;
2. Fail to correct a false statement of material fact/law previously made to the tribunal by L;
3. Fail to disclose to tribunal controlling legal authority that is directly adverse to position of client and not disclosed by opposing counsel (CA - implied by case law); or
4. Offer false evidence.

Front 47

Fairness to opposing party and counsel

Back 47

Under RPC, L must not
1. Unlawfully obstruct another party's access to evidence, alter, destroy, or conceal a document or other material having potential evidentiary value;
2. Falsify evidence;
3. Knowingly disobey an obligation under rules of a tribunal.
CA: Forbid L from threatening to bring disciplinary, administrative, or criminal proceedings to gain advantage in a civil dispute.

Front 48

Trial publicity

Back 48

1. L must not make extrajudicial statement knows/reasonably should know
2. will be disseminated by means of public communication and
3. have substantial likelihood of materially prejudicing adjudicative proceeding.

Front 49

Mandatory withdrawal

Back 49

RPC - withdrawal mandatory if:
1. Rep will result in violation of RPC or other law,
2. L’s physical or mental condition materially impairs L’s ability to represent C, or
3. L discharged.
CA - withdrawal mandatory if:
1. L knows/should know C acting w/o PC to harass other person; or
2. Representation will result in violation of RPC.

Front 50

Permissive withdrawal

Back 50

Withdrawal permitted if:
1. Accomplished without material adverse effect on C*;
2. C has used L’s services to perpetrate crime or fraud*;
3. Representation results in unreasonable financial burden on L*;
2. C persists in a course of action involving L’s services that he reasonably believes is criminal or fraudulent;
4. C insists upon taking action that L considers repugnant/fundamental disagreement;
5. C fails substantially to fulfill an obligation to L regarding L’s services and given reasonable warning that L would withdraw;
7. Other good cause for withdrawal exists.
* CA: L may NOT withdraw for these reasons.