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115 Cards in this Set
- Front
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What rules must lawyers practicing in CA adhere to?
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Lawyers practicing in CA must adhere to the California Rules of Professional Conduct (Cal. RPC), which are based partly on the two ABA models and partly on a prior set of California rules.
~ CA lawyers must also obey the State Bar Act, a part of the CA Business and Professions Code. |
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List of General Substantive Standards- A lawyer may not:
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a. Violate or attempt to violate the Rules of Professional Conduct or knowingly assist another to do so;
b. Commit a criminal act that reflects adversely on the lawyer's honesty or fitness as a lawyer in other respects; c. State or imply an ability to improperly influence a government agency or official; d. Engage in conduct involving dishonesty, fraud, or misrepresentation; e. Engage in conduct prejudicial to the administration of justice; or f. Knowingly assist a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law |
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What is the rule re Lawyers practicing with lay practitioners?
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A lawyer may not practice law in association with, or otherwise share fees with, a layperson; a lawyer can delegate, but must supervise the delegated work carefully and must be ultimately responsible for the results.
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What is the rule re Law Firms and Nonlawyers?
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Law firms may not be set up in such a way that a nonlawyer owns an interest therein, a nonlawyer is a corporate officer or director, or a nonlawyer has the right to direct or control a lawyer's professional judgment.
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What is the rule re Law-Related (Ancillary) Services?
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Lawyers are permitted to provide law-related services (e.g., financial planning).
~ If these services are provided under circumstances that are not distinct from legal services, the lawyer must adhere to the RPC with respect to the ancillary services as well. |
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What is the rule re a client's interests vis-a-vis a firm's interests?
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~ A lawyer in practice must ensure that the client's interests are paramount to the firm's interests and that the client's problems are handled with competence and care.
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What is the rule re naming a law firm?
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A lawyer must not use a firm name or letterhead that is false or misleading.
~ The name of a lawyer holding a public office must not be used in the name of a law firm or in communications on its behalf during any substantial period in which the lawyer is not actively and regularly practicing with the firm. ~ a multistate firm may use the same firm name in each jurisdiction but must list the jurisdictional limitations of those lawyers not licensed to practice in a particular jurisdiction. |
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What is the rule re Partnerships with Laypersons?
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A lawyer may not be a partner with a nonlawyer if any of the partnership activities consists of the practice of law.
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What is the rule re A lawyer or law firm sharing legal fees with a nonlawyer?
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A lawyer or law firm must not share legal fees with a nonlawyer. Exceptions:
(i) an agreement to provide for the payment of money, over a reasonable period of time after a lawyer's death, to the lawyer's estate, or to one or more specified persons; (ii) payment of the purchase price of a law practice to the estate or representative of a deceased, disabled, or disappeared lawyer; and (iii) payments pursuant to a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement. |
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What is the rule re the lawyer and a person who recommends, employs, or pays the lawyer to render legal services for another?
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The Lawyer Must Exercise Independent Judgment: A lawyer must not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment in rendering such legal services.
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May lawyers incorporate?
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Lawyers may incorporate.
~ However, a lawyer in a legal corporation remains personally liable for her own malpractice. ~ In addition, a nonlawyer may not have an interest in a legal corporation as a shareholder, officer, or director. |
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What is the rule re a law firm and its member lawyers under the RPC?
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A law firm must ensure that member lawyers conform to the RPC.
~ Supervisory lawyers have comparable responsibility. |
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When will a lawyer will be responsible for another lawyer's violation of the RPC?
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A lawyer will be responsible for another lawyer's violation of the RPC if:
(i) the lawyer orders or ratifies the conduct involved; or (ii) the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action. |
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What is the Cali rule re the rules violations of another lawyer?
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A California lawyer is prohibited from assisting in, soliciting, or inducing an ethics violation by another person.
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In Cali, when can one member of a firm be punished for the actions of another member of the firm?
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other members of the firm can be disciplined if they approved it or knew about it and did nothing to prevent it.
~ A lawyer is bound by the RPC notwithstanding that the lawyer acted at the direction of another person. |
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What is the rule on agreements Restricting a lawyer's Right to Practice?
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A lawyer must not participate in offering or making:
(i) a partnership or employment agreement that restricts the rights of a lawyer to practice after termination of the relationship, except an agreement concerning benefits upon retirement; or (ii) an agreement in which a restriction on the lawyer's right to practice is part of the settlement of a controversy between private parties. |
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When does The RPC permit the sale of a law firm?
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The RPC permit the sale of a law firm, including goodwill, if:
(i) the seller ceases the private practice of law in that area; [CA this is not required] (ii) the practice is sold in its entirety to another lawyer or firm; and [CA this is not required] (iii) written notice is given to the affected clients. |
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What is the rule re the Sale of A California Law Practice?
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"The Cal. RPC similarly allow the sale of a law practice.
~ However, in California:" (i) A client's confidential information cannot be transferred without the client's written consent; (ii) The seller may keep clients who pose a conflict of interest for the buyer, and may keep a few longtime clients if transferring them is not feasible; and (iii) The seller may continue practicing in the same geographic area. |
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What are advertising and solicitation?
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"Advertising" is a communication with the public at large.
"Solicitation" is a lawyer's individual contact with a layperson designed to entice the layperson into hiring the lawyer." ~ The Supreme Court has recognized lawyer advertising as commercial speech protected by the First and Fourteenth Amendments. ~ States may thus adopt reasonable regulations to insure that the advertising is not false or misleading, but they may not completely prohibit all lawyer advertising. ~ A state may prohibit all lawyer advertising that is false or misleading and may forbid in-person solicitation for profit. |
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What type of scrutiny is truthful, non-deceptive speech subject to?
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Regulation of commercial speech is subject to intermediate constitutional scrutiny, which means that it may be regulated only if:
(i) the government asserts a substantial interest; (ii) the government demonstrates that the restriction directly and materially advances the interest; and (iii) the regulation is narrowly drawn. |
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What is the basic rule re Advertising?
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Communications Must be True and Not Misleading: A lawyer is subject to discipline for any type of statement about the lawyer or his services that is false or misleading.
~ A statement can be false or misleading if it misstates or fails to state material information, creates unjustified expectations, or makes unverifiable comparisons. RPC 7.2 imposes the following more specific rules: a. Statements about fields of law in which the lawyer practices must comply with RPC 7.4 b. Before naming sample clients in an ad, a lawyer should get their consent. c. Every ad must identify at least one lawyer who is responsible for its contents. d. A lawyer must preserve records of the content and placement of all ads for at least two years. |
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What is the rule re Payments for Recommending a Lawyer's Services?
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Except in connection with the sale of a law practice, a lawyer must not pay people for recommending him.
~ but he may pay people for designing and running ads and may pay referral fees to approved lawyer referral services. ~ Legal aid offices and group and prepaid legal service plans may advertise the services they provide. |
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Additional California Restrictions
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Statutory Restrictions: A CA lawyer is prohibited by statute from making communications that contain:
(i) A guarantee or warranty of the outcome of a case; (ii) Words or symbols that suggest quick cash or a quick settlement; (iii) An impersonation of a lawyer or client, without disclosing that it is an impersonation (iv) A dramatization of an accident or other event without disclosing that it is a dramatization; and (v) A contingent fee offer that does not explain how litigation costs will be handled. |
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Under the CA RPC, what type of lawyer communications are presumed to be false or misleading?
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Under the CA RPC, the following lawyer communications are presumed to be false or misleading unless the lawyer can prove otherwise:
(i) communications delivered to a potential client who is in the hospital or who is suffering physical or mental stress. (ii) mailings that seek fee-paying work and that are not clearly labeled as advertising material; and (iii) media ads that mention the ultimate result of a case without disclosing the facts and law that produced that result. |
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What is the rule re soliciting a client in person or by telephone?
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A lawyer must not seek fee-paying work by initiating a personal or live telephone contact with a prospective client with whom the lawyer has no family or prior professional connection.
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What is the rule re using agents to solicit?
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A lawyer must not use agents (runners or cappers) to solicit in a manner that the lawyer could not herself solicit.
The solicitation rules apply only when the lawyer's pecuniary gain is a significant motive for the solicitation. ~ Thus, offers of free legal service, made without hope of pecuniary gain, are permitted. |
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What is the rule re Personal Contacts with Family, Clients, and Former Clients?
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A lawyer may volunteer legal advice to her family members, clients, and former clients, and she may take legal business arising out of that volunteered advice.
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What is the rule re Targeted Direct-Mail Solicitations?
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Absent actual knowledge that the prospective client does not wish to receive communications from the lawyer, a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal problem.
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Is harassing prospective clients prohibited?
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no and a lawyer must not solicit a prospective client who has indicated that he does not wish to be solicited.
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What is the rule re written solicitations?
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Written or recorded communications with prospective clients who are known to need specific legal services must be labeled as "advertising material."
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What is the rule re communicating specific specialty areas of practice?
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A lawyer who has been properly certified as a specialist by the bar of her state may hold herself out to the public as a certified specialist.
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What is the rule re Specialists Certified by Private Organizations?
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A lawyer who has been certified as a specialist by a private org. may hold herself out as a certified specialist if she identifies the certifying organization and if:
(i) the organization has been approved by the state or the ABA, or (ii) the organization has not been approved and the lawyer makes that fact clear. |
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What is the rule re a lawyer may stating that he does (or does not) practice in particular fields of law?
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In public communications, a lawyer may state that he does (or does not) practice in particular fields of law, so long as he does not state or imply that he is a recognized or certified specialist.
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What is the RPC rule re Rendering Public Interest Legal Service?
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The RPC state a lawyer should aspire to render a specified minimum number of hours of pro bono legal services per year. A substantial majority of time should be devoted without fee to poor persons or organizations in matters designed to help poor persons.
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What is the CA rule re seeking the appointment of a guardian for a client?
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A California lawyer may not seek the appointment of a guardian for a client even when the lawyer reasonably believes that the client cannot adequately act in her own interest.
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What is the general rule re Avoiding Conflicts of Interest?
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A lawyer must be careful not to enter into a relationship where there is a potential conflict of interest that is likely to adversely affect his ability to exercise independent and professional judgment.
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What is the RPC rule re the Representation of a Client Adverse to the Interests of Another Client?
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Under the RPC, a lawyer may not represent a client if the representation will be directly adverse to another client (or the lawyer's own interests) unless:
(i) the lawyer reasonably believes that representation will not adversely affect the relationship with the other client; and (ii) each client consents after consultation. In California: the clients must consent in WRITING |
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What is the rule re an Ownership or Financial Interest Adverse to a Client?
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A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless:
1) The transaction and terms in which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client; 2) The client is given a reasonable opportunity to seek the advice of independent counsel on the transaction; and 3) The client consents in writing thereto. |
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What is the rule re the Improper Use of Information Adverse to Client?
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A lawyer must not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation.
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What is the rule re Designating Oneself as a Beneficiary?
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Under the RPC, a lawyer must not prepare an instrument giving the lawyer, or the lawyer's parent, child, sibling, or spouse, any substantial gift from a client (including a testamentary gift) except where the client is related to the donee.
~ However, in California: the lawyer is prohibited from inducing the gift, not preparing the instrument. |
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What is the rule re an attorney making an agreement giving the lawyer literary or media rights to an account based, in substantial part, on information relating to the representation?
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The RPC state that prior to the conclusion of representation of a client, a lawyer must not make or negotiate an agreement giving the lawyer literary or media rights to an account based, in substantial part, on information relating to the representation. (but not after the conclusion of representation).
~ the CA RPC contain no such provisions, but case law recognize a serious conflict of interest between Lawyer and Client. Thus, the trial judge must ensure that the defendant fully understands the conflict. If the defendant does fully understand the conflict, he may waive it and continue to have the lawyer represent him. |
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What is the rule re Financial Assistance to a Client?
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The RPC provide that a lawyer must not provide financial assistance to a client in connection with litigation, except that:
(i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; and (ii) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client. |
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What is the California Rule on Litigation Expenses?
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Is similar to the RPC with respect to litigation expenses, but it:
(i) applies in all contexts, not just litigation, (ii) prohibits a lawyer from "buying" a potential client with a promise to pay the potential client's personal or business debts; and (iii) permits lawyer to lend money to her client for any purpose after the lawyer is hired if the client gives her a written promise to repay the loan. |
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What is the rule re accepting Compensation from a Party Other than the Client?
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A lawyer must not accept compensation for representing a client from someone other than the client unless:
(i) the client consents after consultation; [in CA the consent must be in writing]; (ii) there is no interference with the lawyer's independence of professional judgment or with the lawyer-client relationship; and (iii) information relating to representation of a client is protected. |
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What is the rule re an Aggregate Settlement or Agreement in Multiple Representation?
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A lawyer who represents two or more clients must not participate in making an aggregate settlement of the claims of or against the clients (or, in a criminal case, an aggregate agreement as to guilt or no-contest pleas) unless each client consents after consultation, including disclosure of the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement or agreement.
~ The clients' consents must be in writing in California. |
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What is the rule on Limiting Liability for Malpractice?
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A lawyer must not make an agreement prospectively limiting the lawyer's liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement.
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What is the rule re Settling Malpractice Claim with an Unrepresented Client or Former Client?
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A lawyer must not settle a claim for malpractice with an unrepresented client or former client without first advising that person in writing that independent representation is appropriate.
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What is the rule re related people representing adverse clients?
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Under the RPC, when two lawyers are related to each other as parent, child, sibling, or spouse, they must not represent clients whose interests are directly adverse without first obtaining the clients' consent after consultation.
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How does the CA Rule re related persons representing adverse clients differ?
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1) California Rule: Differs in three respects:
(i) applies where the two related lawyers represent different clients in a matter, even absent a conflict of interest between the clients themselves; (ii) requires that the affected clients be notified, but not that they consent; and (iii) it applies to three additional relationships: "(a) where one lawyer is a client of the other lawyer; (b) where the two lawyers are living together; and (c) where the two lawyers have an intimate personal relationship with each other." Exam tip: unlike other types of conflicts of interest, the conflict that arises when lawyers are related to one another is not imputed to their respective law firms. |
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What is the rule re a lawyer acquiring a Proprietary Interest in the Cause of Action?
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A lawyer must not acquire a proprietary interest in a client's cause of action except that the lawyer may:
(i) acquire a lien granted by law to secure the lawyer's fee or expenses; or (ii) contract with a client for a reasonable contingent fee in a civil case. |
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What is the Conflict of Interest rule Re A Former Client?
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A lawyer who formerly represented a client may not thereafter represent another client in the same or a substantially related matter if that client's interests are materially adverse to the interests of the former client, unless the former client consents after consultation.
~ Also, a lawyer may not represent a person in the same or a substantially related matter in which a firm with which the lawyer was formerly associated represented a client: (i) whose interests are materially adverse to this person, and (ii) about whom the lawyer had acquired material info protected by the RPC - unless the former client consents after consultation. |
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What is the rule re Using or Revealing Information relating to a former representation?
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A lawyer who has formerly represented a client in a matter or whose present or former firm has done so may not thereafter:
(i) use information relating to the representation to the disadvantage of the former client except as permitted by the RPC or after it has become generally known, or (ii) reveal information relating to the representation except as permitted or required by the RPC. |
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When may a lawyer act as an intermediary?
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A lawyer may act as an intermediary between clients if:
(i) the lawyer consults with each client concerning the implications of common representation and obtains each client's consent to the common representation; (ii) the lawyer reasonably believes that the matter can be resolved on terms compatible with the client's best interests, that each client will be able to make adequately informed decisions in the matter, and that there is little risk of material prejudice to the interests of any of the clients if the contemplated resolution is unsuccessful; and (iii) The lawyer reasonably believes that the common representation can be undertaken impartially. ~ A lawyer must withdraw as an intermediary if any of the clients so requests, or if any of the conditions stated above is no longer satisfied. |
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What is the rule re Trial Counsel as Witness?
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The RPC state that a lawyer ordinarily may not serve as trial counsel in litigation where the lawyer is likely to be a necessary witness
~ In such a situation, the lawyer should refuse employment or, if he has already been retained, should withdraw from the case. ~ There are three exceptions to this prohibition: (i) testimony is on uncontested matter (ii) testimony concerns only nature and value of legal services rendered to the client; and (iii) withdrawal would result in substantial hardship to the client because of the distinctive value of the lawyer or firm to the case. ~ a lawyer may serve as trial counsel when another lawyer in the lawyer's firm is likely to be called as a witness unless precluded from doing so by the rules relating to conflict of interest. |
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What is the CA Rule re trial counsel testifying?
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In California, a trial counsel is prohibited from testifying as a witness before a jury.
~ However, the trial counsel may testify before a jury if his testimony will concern only an uncontested matter or the nature and value of his services, or the client consents. |
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May a lawyer representing an organization also represent its officers, directors, employees, etc.?
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Yes.
A lawyer employed to represent an organization represents the organization acting through its duly authorized constituents. ~ lawyer must act in the best interests of the organization, not any particular officer, employee, etc. However, a lawyer representing an organization may also represent any of its directors, officers, employees, members, shareholders, or other constituents, subject to the provisions of RPC 1.7 (relating to conflict of interest - disclosure and consent requirements). |
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What is imputed disqualification?
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Under the RPC, none of the lawyers in a firm may knowingly represent a client when any one of them practicing alone would be prohibited from doing so because of a conflict of interest.
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Is there an imputed disqualification rule in CA?
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The Cal RPC: are silent regarding imputed disqualification.
~ Thus, a California lawyer is not subject to discipline for an imputed conflict. ~ However, California case law follows the imputed disqualification rule for purposes of disqualifying a lawyer from handling a matter because of conflict of interest. |
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In terms of Imputed Disqualification, what is the Effect of Lawyer's Termination with a Firm?
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When a lawyer has terminated an association with a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated lawyer (and not currently represented by the firm) unless:
(i) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (ii) any lawyer remaining in the firm has info protected by RPC 1.6 (relating to confidentiality) and RPC 1.9 (relating to using or revealing info pertaining to the representation) that is material to the matter. |
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May a disqualification be waived?
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Yes, A disqualification may be waived by the affected client.
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What is the rule re Prior Public Legal Employment and later private representation?
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The RPC state that except as otherwise expressly permitted by law, a lawyer must not represent a private client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee, unless the appropriate government agency consents after consultation.
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Has CA adopted this rule?
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California: has not adopted this rule, but a California lawyer who has participated on the prosecution side of a criminal case is prohibited from later participating on the defense side of that case.
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Is a Lawyer's Conflict of Interest Imputed to the Firm in a public/private situation?
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Under the RPC, no lawyer in a firm (with which that lawyer is associated) may knowingly undertake or continue representation in a matter in which the lawyer participated personally and substantially as a public officer or employee unless:
(i) The disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom; and (ii) written notice is promptly given to the appropriate government agency to enable it to ascertain compliance with the provisions of this rule. ~ Note that This procedure applies in the California criminal cases as mentioned above |
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What about when a lawyer has confidential government information about a person in the successive government/private practice situation?
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A lawyer having confidential government information about a person, acquired when the lawyer was a public officer or employee, may not represent a private client whose interests are adverse to that original client in a matter in which the information could be used to the material disadvantage of that original client.
~ A firm with which that lawyer is associated may undertake or continue representation in the matter only if the disqualified lawyer is screened from any participation in the matter and is apportioned no part of the fee therefrom. |
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May a lawyer serving as a public officer or employee participate in a matter in which the lawyer participated personally and substantially while in private practice?
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No. Except as otherwise expressly permitted by law, a lawyer serving as a public officer or employee may not:
(i) participate in a matter in which the lawyer participated personally and substantially while in private practice or nongovernmental employment, unless under applicable law no one is authorized to act in the lawyer's stead in the matter; or (ii) negotiate for private employment with any person who is involved as a party or as attorney for a party in a matter in which the lawyer is participating personally and substantially. ~ However, a lawyer serving as a law clerk to a judge or arbitrator may negotiate for private employment after so notifying the judge or arbitrator. |
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How about the Former Judge, Arbitrator or Law Clerk situation?
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A lawyer must not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer, arbitrator, or law clerk to such a person unless all parties to the proceeding consent after disclosure.
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What is the duty regarding compensation called and what is this duty under the RPC?
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The Duty to Avoid Fee Misunderstandings.
The RPC provides that when the lawyer has not regularly represented the client, the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. |
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What is the Duty to Avoid Fee Misunderstandings in CA?
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California: requires a written fee agreement if the fees will exceed $1,000, except when:
(i) the client is a corporation; (ii) the client states in writing that she does not want a written fee agreement; (iii) legal services are the same kind of services that the client has previously received and paid for; (iv) the lawyer acted in an emergency to protect the client's rights; or (v) a writing is impractical for other reasons. |
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Is the Fee required to be reasonable?
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Yes.
Under the RPC, an attorney's fee must be reasonable, based on such factors as the time, labor, and skill required to perform the work; the amount involved and result obtained; the customary fee within the locality for similar work; and the experience, ability, and reputation of attorney, etc. |
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What does the CA rule prohibit, re fees?
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California rule is to same effect - it prohibits "unconscionable" fees.
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What are contingent fee agreements, must they be in writing?
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A contingent fee is a fee that is dependent on the successful resolution of a client's case and payable from the judgment proceeds.
~ A contingent fee agreement must be in writing and state the method by which the free is to be determined. ~ Under the RPC, contingent fees are prohibited in domestic relations matters and in representation of defendants in criminal cases;. ~ Note: The Cal. RPC are silent on contingent fees in criminal and domestic relations cases. ~ A lawyer hired on contingency, upon discharge, will be entitled to the reasonable value of the services performed. |
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What is the RPC stance on referral fees?
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The RPC prohibit referral fees.
~ However, a lawyer may ethically divide fees with an outside lawyer if the client consents and the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation. ~ In all cases, the total fee must be reasonable. |
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What is the CA Rule re referral fees?
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Under the CA RPC, a lawyer may pay a referral fee to an outside lawyer who referred the case to her if the client knows all the terms and consents in writing, and the total fee in not unconscionable and is not increased because of the referral fee.
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What are the basic obligations of Competence and Care?
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Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
In addition, the lawyer must act with reasonable diligence and promptness in representing a client, and must keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. |
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What is the attorney-client privilege?
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Generally, the attorney-client privilege allows a client to refuse to testify and prevent his attorney from testifying in court about confidential communications between the two or their respective agents.
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What does the privilege cover in a Corporate Client - Attorney-Employee Communications situation?
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If the client is a corporation, the privilege covers confidential communications between the attorney and a high-ranking corporate official. It also covers communications between the attorney and other corporate employees if the communication concerns a subject within the scope of the employee's duties and the employee:
(i) communicates with the attorney at the direction of the employee's superior, and (ii) knows that the communication is to help the corporation get legal advice. |
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What is the scope of the privilege?
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The attorney-client privilege covers not only direct communications between the attorney and client, but also communications made through or in the presence of an agent who facilitates the attorney-client relationship (e.g., the attorney's law clerk).
~ Moreover, the privilege protects only communications pertaining to legal services, not communications about other subjects, such as business tactics or political consequences. ~ The privilege also protects confidential communications that are "on the road" to an attorney-client relationship, even if no relationship is ultimately formed. |
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What is the Duration of the Privilege?
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The attorney-client privilege continues indefinitely, even if the attorney-client relationship has terminated. The privilege even survives the death of the client.
~ Note though that in California: the attorney-client privilege will terminate when a deceased client's estate is settled and his personal representative is discharged. |
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What are the Exceptions to the Attorney/Client Privilege?
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The attorney-client privilege does not apply in situations where:
(i) the client seeks the attorney's services to enable or aid anyone to commit a future crime or fraud; (ii) the communication is relevant to an issue of breach of the duties arising out of the attorney-client relationship; (iii) civil litigation arises between two person who were formerly the joint clients of the attorney; or (iv) the attorney can furnish evidence about the competency or intention of a client who has attempted to dispose of property by will or inter vivos transfer. |
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What is the additional exception in CA to the attorney/client privilege?
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IN California, an attorney may disclose the intention of a client to commit a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm when disclosure is necessary to prevent the client from committing the act.
~ The attorney may disclose the client's intention even when the client is not seeking the attorney's services in carrying out the act, but is instead just conveying the intention to the attorney (this is the difference between a above). |
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What is the Duty of Confidentiality?
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Under the RPC, a lawyer generally must not reveal information relating to the representation of a client.
~ It does not require the client to indicate information that is to be confidential or permit the lawyer to speculate whether particular information might be embarrassing or detrimental. |
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Does the Duty of Confidentiality apply to info obtained before or after representation?
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Yes, The confidentiality requirement applies even if the information is acquired before or after the relationship existed.
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Does the duty continue to apply after the lawyer-client relationship has terminated?
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Yes
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What are the RPC and Restatement Exceptions to the Duty of Confidentiality?
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(i) the client consents after consultation;
(ii) such disclosure is impliedly authorized in order to carry out the representation; (iii) the lawyer reasonably believes it is necessary to prevent the client from committing a crime likely to result in death or substantial bodily harm; (iv) disclosure is required by a final order of the court, the ethics rules, or certain statutes; or (v) disclosure is necessary to collect a fee or protect the lawyer's reputation. |
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What are the California Exceptions to the Confidentiality Duty?
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Although California has no ethics rules on confidentiality, lawyers promise, in the Attorney's Oath, to maintain the confidences and secrets of their clients. On its face, this promise has no exceptions, but California case law has created exceptions for disclosure:
(i) when the attorney is compelled by law or court order; (ii) to collect an attorney's fee; and (iii) to defend against a claim of legal malpractice, ineffective assistance of counsel, or other wrongdoing by the attorney. ~ Note that the California Supreme Court has refused to add an exception for future crimes that will cause death or serious bodily harm. Thus, a California lawyer must follow his conscience if forced to choose between protecting confidentiality and protecting human life. |
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What are the (main) Differences between the attorney-client privilege and the duty of confidentiality?
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The attorney-client privilege applies only to communications made during the course of the relationship and covers only the attorney's formal testimony.
~ The duty of confidentiality protects from any disclosure all information related to the representation however and whenever derived. |
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What is the Duty to Protect a Client's Property?
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A lawyer must hold property of clients or third persons separate from the lawyer's own property; must keep records of client funds and other property; must keep the client informed and deliver funds to the client; and if the lawyer is in possession of property claimed by the lawyer and another, the lawyer must keep that property separate.
~ In California, a lawyer must preserve records of client funds or other property for five years after the money or property is distributed. |
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What is an attorney's Duty as Adviser?
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A lawyer must exercise independent professional judgment and render candid service.
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Who determines the scope of the representation?
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The client has the ultimate authority to determine the scope of the representation, but the lawyer is responsible for informing the client of, and operating within, the limitations imposed by law and the RPC.
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Who makes decisions that affect the merits of the case?
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Decision that affect the merits of the case or substantially prejudice the client's rights may be made only by the client.
~ In a civil case, this means the client decides on settlement offers and whether to waive affirmative defenses. ~ In a criminal case, it is the client's decision, after consultation with the lawyer, as to what plea to enter, whether to waive a jury trial, whether the client will testify, and whether to appeal a conviction. ~ Decisions involving procedural details of litigation (e.g., choice of motions, scope of discovery, choice of witnesses) are generally made by the lawyer. |
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When may a lawyer limit the scope of the representation?
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When a lawyer feels antipathy for the client's position or objective or is lacking time, interest, or competence, the lawyer may limit the scope of the representation if the client consents after consultation.
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What is the rule re Assisting Client in Criminal or Fraudulent Conduct?
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A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent.
~ If the client insists on illegal or unethical assistance, the lawyer must withdraw. ~ Likewise the lawyer who believes his client is involved in lawful conduct must withdraw when he discovers that his advice is being used by the client to commit a crime or fraud. Exam Note: the prohibition against recommending unlawful conduct would not prevent a lawyer from testing the scope or validity of a particular law. |
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What is the rule re Communication with persons who have counsel?
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In the representation of a client, a lawyer must not communicate about the subject of the representation with a person he knows to be represented by counsel in the matter unless the person's counsel has granted permission or he is otherwise authorized by law to make such direct communication. This rule does not prohibit communications with a party, or an employee or agent of a party, concerning matters outside the representation.
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How does this rule apply to organizations?
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A lawyer must get the consent of the organization's counsel before communicating with:
(i) a person who has present managerial responsibility for the organization; (ii) a person whose conduct may be imputed to the organization for purposes of criminal or civil liability; or (iii) a person whose statements may constitute an admission by the organization. ~ However, consent is usually not needed before talking with a former employee. |
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When a person does not have counsel of his own, may a lawyer representing a client contact the person directly?
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When a person does not have counsel of his own, a lawyer representing a client may contact the person directly. However, when dealing with the unrepresented person, the lawyer must:
"(i) not state or imply that she is disinterested, (ii) clear up misunderstandings about her role in the matter, and (iii) not give advice other than to obtain counsel. |
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What is the Respect for Rights of Third Persons?
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In representing a client, a lawyer must not use:
(i) means that have no substantial purpose other than to embarrass, delay, or burden a third person; or (ii) methods of obtaining evidence that violate the legal rights of such a person. |
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What is the rule re Truthfulness in Statements to Others?
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In representing a client, a lawyer must not knowingly:
(i) make a false statement of material fact or law to a third person; or (ii) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by RPC 1.6 (relating to confidentiality of information). |
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What is the general rule re claims and defenses in the Conduct of Litigation?
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A lawyer must not make frivolous claims or defenses.
~ Additionally, a lawyer must make reasonable efforts to expedite litigation consistent with the interests of the client. |
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What is entailed in the Duty of Candor Toward the Tribunal?
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Under the RPC, lawyer must not knowingly:
(i) Make a false statement of material fact or law to a tribunal; (ii) Fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client; (iii) Fail to disclose to the tribunal legal authority known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (iv) Offer evidence known to be false. ~ the duties continue to the conclusion of the proceeding, which includes appeals, and apply even if compliance requires disclosure of information otherwise protected by the rules of confidentiality. Exam Note: while an attorney must disclose controlling law, he has no obligation to volunteer harmful facts. The opposing side has discovery for this. |
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What is the CA Rule re Candor Towards a Tribunal and how does it differ from the RPC?
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In presenting a matter to a tribunal, the California Attorney's Oath requires a lawyer to use means only as are consistent with the truth.
~ However, the Attorney's Oath also requires a lawyer to preserve the client's confidential information, and the California courts have not created an exception that would allow a lawyer to reveal confidential information in order to rectify false evidence that the lawyer has unwittingly presented. |
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Under Candor Towards a Tribunal, what is the rule re False Evidence?
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A lawyer generally cannot call any witness he believes will testify falsely. If a lawyer discovers that a nonclient witness has testified falsely, the lawyer must reveal it.
If a client has or is about to commit perjury, the lawyer should try to persuade the client not to do so or to recant. If that fails, the lawyer should attempt to withdraw. If withdrawal is impossible or will not remedy the situation, the lawyer must reveal the perjury. Note: Under California law: A lawyer may not reveal a witness's perjury (whether the witness is a client or not) if the lawyer discovered the perjury through the client's confidential information. |
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What are the Required Disclosures in an Ex Parte proceeding?
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In an ex parte proceeding, a lawyer must inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse to his client.
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What is the Duty of Fairness to Opposing Party and Counsel?
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Under the RPC a lawyer must not:
(i) Unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value; (ii) Falsify evidence; (iii) Knowingly disobey an obligation under the rules of a tribunal; (iv) In pretrial procedure, make frivolous discovery requests or fail to make reasonably diligent efforts to comply with proper discovery requests by an opposing party; (v) In trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused; or "(vi) Request a person other than a client to refrain from voluntarily giving relevant information to another party unless: (i) the person is a relative or an employee or other agent of a client; and (ii) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information." In addition to the above rules, The Cal. RPC forbid a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute. |
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What is a lawyer's obligation re Avoiding Improper Contact With Jurors And The Court?
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A Lawyer must not:
(i) seek to influence a judge, juror, prospective juror, or other official by means prohibited by law; (ii) communicate ex parte with such a person except as permitted by law; or (iii) engage in conduct intended to disrupt a tribunal. |
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What is the Rule re Trial Publicity, extrajudicial statements?
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A lawyer must not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding.
~ However, a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or her client. |
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When is Withdrawal is mandatory or should representation should be declined?
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Withdrawal is mandatory or representation should be declined if:
(i) the representation will result in violation of the RPC or other law; (ii) the lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client; or (iii) the lawyer is discharged. |
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When is withdrawal permissive?
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A lawyer may withdraw from representing a client if:
(i) Withdrawal can be accomplished without material adverse effect on the interests of the client; (ii) The client persists in a course of action involving the lawyer's services that lawyer reasonably believes is criminal or fraudulent; (iii) The client has used the lawyer's services to perpetrate a crime or fraud; (iv) A client insists upon pursuing an objective that the lawyer considers repugnant or imprudent; (v) The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; (vi) The representation will result in an unreasonable financial burden on the lawyer; or (vii) Other good cause for withdrawal exists. In California: A lawyer may not withdraw because of reasons 1, 3, and 6 above. |
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When Must a Lawyer Continue Representation?
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When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good cause for terminating the representation.
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What is an lawyer's duty upon Termination?
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Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client's interests.
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What is the rule re a Lawyer's Conduct While Not In Practice?
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Lawyers acting in their private business or personal capacities are still bound by professional standards of conduct and can be disciplined for conduct violating such standards.
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What is the rule re Political Contributions to Obtain Government Employment?
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A lawyer or firm must not accept government legal employment or a judicial appointment if the lawyer or firm makes a political contribution for the purpose of obtaining such employment or appointment.
Exceptions: Does not apply to employment or appointments: (i) for uncompensated services; (ii) made on the basis of a lawyer's experience and following a process that is free from influence based on political contributions; or (iii) made on a rotating basis from a list compiled without regard to political contributions. |
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How about a lawyer's statements re a judicial officer?
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A lawyer must not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory or public legal officer, or of a candidate for election or appointment to judicial or legal office.
~ A lawyer who is a candidate for judicial office must comply with the applicable provisions of the Code of Judicial Conduct. |
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What is the Special Role of the Public Prosecutor?
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The prosecutor in a criminal case must:
1. Refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; 2. Make reasonable efforts to assure that the accused has been advised of the right to counsel and has been given reasonable opportunity to obtain counsel; 3. Not seek to obtain from an unrepresented accused a waiver of important pretrial rights such as the right to a preliminary hearing; 4. Make timely disclosure to the defense of all evidence or information known to the prosecution that tends to negate the guilt of the accused or mitigate the offense; 5. Exercise reasonable care to prevent investigators or other persons assisting the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making; 6. Not subpoena a lawyer to present evidence against a client unless the prosecutor reasonably believes: "(i) the information is not privileged; (ii) the evidence is essential; and (iii) there is no feasible alternative; and" 7. Refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused |
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What is a lawyer's duty re Reporting Professional Misconduct under the RPC?
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Under the RPC, a lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyer's honesty or fitness as a lawyer in other respects must inform the appropriate professional authority.
~ A similar rule applies to knowledge that a judge has committed a violation of the rules of judicial conduct. ~ This rule does not require disclosure of privileged or confidential information. |
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What is the CA reporting requirement re Professional Misconduct?
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1. California Reporting Requirement: California has no ethics rule that requires a lawyer to report misconduct by another lawyer or a judge. Instead, California lawyers are required to report themselves to the State Bar when:
a. Sued for malpractice three times in 12 months; b. Found civilly liable for fraud, breach of fiduciary duty, or the like; c. Sanctioned more than $1,000 (except for discovery sanctions); d. Charged with a felony; e. Convicted of certain serious crimes; or f. Disciplined in another jurisdiction. |
