Professional Responsibility

Front 1

What duties do you owe to your client?

Back 1

FSCCCLD
1) Financial Responsibility
2) Silence
3) Confidentiality
4) Competence
5) Communication
6) Loyalty
7) Dilligence

Front 2

What duties do you owe to people other than your client?

Back 2

1) Candor
2) Fairness
3) Dignity/Decorum

Front 3

To whom, other than your client, can you owe a duty?

Back 3

1) Court,
2) adversaries,
3) legal profession,
4) third parties,
5) public.

Front 4

What is required by the duty of confidentiality to a client?

Back 4

Don't reveal anything related to the representation of a client without her consent, regardless of wehther client requested that something be kept confidential or not.

Front 5

When does the duty of confidentiality attach?

Back 5

When confidences are communicated in seeking representation; may attach before lawyer/client relationship is formed, or even if no relationship is formed.

Front 6

Can the duty of confidentiality be disclaimed?

Back 6

Only if it is done in VERY plain English; rarely successful

Front 7

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

Back 7

-Duty of confidentiality is broader;
-ACP is an evidence rule allowing privilege holder to prevent you from testifying at trial.
Overlap, but confidentialiyt applies regardless of source of information to anything not generally known and to disclosures beyond legal representation.

Front 8

Exceptions to the duty of confidentiality:

Back 8

1) Consent (express or implied from representation)
2) Defending yourself against malpractice, disciplinary actions, or nonpayment
3) Compelled by court order
4) conflicts checks at new legal employer
5) limited permissive disclosures as necessary to prevent reasonably certain imminent death or substantial bodily harm
6) Under ABA only, permissive disclosures to prevent fraud if client is using your services to commit crime and disclosure would prevent or mitigate substantial loss

Front 9

What california specific rules apply to the disclosure of confidential information?

Back 9

If disclosing to prevent death or imminent bodily harm, must first:
1) make a good faith effort to persaude client not to commit the act and
2) inform client of decision to reveal confidences IF REASONABLE IN THE CIRCUMSTANCES

Front 10

Does CA have an exception to the duty of confidentiality for financial crimes?

Back 10

NO

Front 11

When does a conflict of interest arise with respect to a client?

Back 11

When the interest of another client, yourself, or a third party materially limits or is adverse to loyal representation

Front 12

Are you responsible for a conflict of interest of which you were nto aware?

Back 12

Yes.
EXCEPTION: short term legal services under court agency or nonprofit program

Front 13

What is imputed disqualification?

Back 13

Any group of lawyers taht work together closely or share responsibiliteis share each others conflicts (disqualifies but does not discipline). EXCEPTIONS:
1) ethical screens permissible if imputed disqualification is from a past representation while at a different organization and client consents
2) purely personal conflicts not imputed
3) short term legal services under nonprofit or court programs not imputed

Front 14

What remedy in cases of imputed disqualification?

Back 14

Depends on whcih stage of the case.
1) Refuse to take case
OR
2) advise multiple clients to get separate counsel OR
3) withdraw

Front 15

What conflicts always COMPLETELY prohibit representation?

Back 15

1) Same lawyer/law firm on opposite sides of the same matter (both clients in direct conflict); 2) FILL IN

Front 16

Under what circumstances might conflicts be permissible?

Back 16

Certain examples, subject to case by case analysis of three elements:
1) lawyer reasonably believes she can represent everyone effectively despite conflicts
2) lawyer informs each affected client
3) client consents in writing (if duty of confidentiality prevents disclosure of necessary inforamtion, consent may not be possible).

Front 17

What conflicts MIGHT be permissible, subject to analysis under three factors:

Back 17

1) Opposing a current client in another matter (eg. one labor and one securities matter; all clients must consent)

Front 18

When are things that might look like conflicts not actually conflicts?

Back 18

1) lawyer represents a policy holder and his insurance company as joint company, where insurer's interest in each is only as an indemnity provider (CA statutory exception);
2)

Front 19

Can a legal position taken in a case create a conflict?

Back 19

Not usually, but if one victory would disadvantage the other, must obtain consent

Front 20

What remedy if a potential conflict between multiple clients in the same matter turns into an actual conflict?

Back 20

Best: Withdraw from both and advise separate representation.
Acceptable: Withdraw from the side that has NOT given you information leading to the conflict

Front 21

When do potential conflicts arise from representing multiple clients in the same amtter?

Back 21

1) acting as an intermediary
2) corporation and any of its employees or shareholders
3) both spouses in unconstested divorce or will drafting.
4) Prenuptual contract drafting (ALWAYS A CONFLICT)

Front 22

When can you, an individual lawyer, take on a new client in a matter related to one on which you represented a former client?

Back 22

Never without client's
1) knowledge AND
2) consent.
Must inform.

Front 23

How do you determine wehther you can represent a new client in an action against a former client?

Back 23

If the representations overlap in 1) scope 2) function or 3) information, conflict exists.

Front 24

When is your representation of a former client imputed to a firm that you have left, but where you worked when representing that client

Back 24

1) If the matters are substantially related or the same and
2) if any remainin glawyer has confidential material informaiton

Front 25

When is your representation of a former client imputed to a firm new firm that you have transferred to?

Back 25

Only if the new firm fails to:
1) timely and effectively screen you
2) keep you from receiving a direct part of the fee
3) notify your former client and
4) periodically certify compliance with those conditions

Front 26

What standard governs conflicts of former government laywers now in private practice?

Back 26

A government lawyer who worked "personally and substantially" on a "matter" may not work on the same matter later in public practice WITHOUT THE GOVERNMENT'S CONSENTQ

Front 27

What is a "matter" for purposes of conflicts?

Back 27

a specific dispute between specific people over specific issues

Front 28

When is a former government lawyer's work on a matter imputed to a new firm that he has transferred to?

Back 28

Only if the new firm fails to
1) timely and effectively screen the gov. lawyer
2) keep you from receiving a direct part of the fee
3) notify the government

Front 29

What rules apply to former jdicial officers (clerks, etc.) moving into private practice for purposes of conflicts?

Back 29

Same as for gov. lawyers

Front 30

What is the key difference between the standards for avoiding imputed disqualification and personal disqualification for conflicts with past clients?

Back 30

IDQ requires simply that the former client be informed.
Personal DQ requires that they be informed and consent.

Front 31

When do conflicts arise between lawyer and client?

Back 31

1) Substantial Gifts to lawyer.
2) Limitations on liability
3) publication rights
4) advances and loans to clients
5) use of information covered by duty of confidentiaity to a client's disadvantage
6) business transactions or adverse interests

Front 32

What are the rules governing substantial gifts to lawyers from clients?

Back 32

Lawyers may not:
1) solicit substantial gifts from clients or
2) draft legal isntruments for clients WHO ARE NOT YOUR COSE RELATIVES IF they will provide a substantial gift to you or your relative

Front 33

Can a alwyer limit the client's righ tot report him for ethical or professional violations?

Back 33

No

Front 34

Can a lawyer limit his professional liability to a client?

Back 34

-Not at all in Cali.
-Not under ABA unless the client is independently represented in forming the contract

Front 35

Can a client sell his lawyer the publication rights to his story?

Back 35

-ABA: Not before representation has ended.
-Cali: Not unless jduge is satisfied that the client clearly understands

Front 36

Can a lawyer loan or advance money to his client?

Back 36

-ABA: Only litigation expenses for indigent clients adn advance of litigation expenses in continent fee cases.
-Cali: only with a written loan agreement to an existing client.

Front 37

When can a cient enter into a business transaction with a lawyer?

Back 37

Only if First Discussed Over Coffee:
1) Fair terms to client
2) Disclosed in understandable writing
3) Opportunity for client to consult an outside lawyer and
4) Client Consents (in writing required in Cali)

Front 38

When can lawyer accept "payment" in the form of shares, etc.?

Back 38

If the work is valued reasonably and it is fair and reasonable under circumstances known to the alwyer when interst was acquired.

Front 39

When can a lawyer sit on the Board of Directors of a client organization?

Back 39

Non-profits: fine.
Corporate client: Permissible but discouraged because likelyt o compromise duties of loyalty and confidentiality

Front 40

Can a laywer appear as both witness adn trial counsel in a case?

Back 40

ABA: Only if
1) testimony is unconstested OR
2) testimony regards nature adn value of services rendered OR
3) distinctive value to the case means that withdrawal woudl impose substantial hardship on teh client. AND
4) if testimony might preate prejudice, client consent is requried.

CA:
yes in a bench trial.
with client consent in jury trial

Front 41

Can a lawyer represent a client when the lawyer has a close relationship with opposing counsel?

Back 41

No

Front 42

What qualifies as a "close relationship with opposing counsel"?

Back 42

Immediate family, roommate, boyfriend, shackmates, etc.

Front 43

Can a lawyer represent a client when the lawyer has a business relationship with opposing counsel?

Back 43

yes, but must be disclosed

Front 44

Are conflicts based on close relationships imputed to co-counsel?

Back 44

No

Front 45

If a third party is paying a lawyer's bill for services to client, do they get input to the representation?

Back 45

NO. Only duty is to client

Front 46

What are the federla requirements for in house, securities lawyers?

Back 46

If a lawyer discovers that an agent of the company has materially violated securities law:
1) must report matter to CEO or chief legal counsel.
If no response
2) must inform board or highest authority in the company.
If no response, AND
3) if you reasonably believe it necessary tp revent fraud, perjury, or substantial injury to teh organization or investors, or to rectify financila injury from a violation that involved your services, then lawyer MAY report to SEC without client consent.

Front 47

What are the ethical rules governing attorneys fees in non-contingent fee cases

Back 47

Agreement msut include:
a) how fee is calcaulted
b) what services are covered, and
c) lawyer and client's duties.

in Cali,
d) must be in writing unless
i) fee is under $1000 OR
ii) agreement is with a corporate client OR
iii) for routine serices for a regular client OR
iv) in an emergency

Front 48

What are the ethical rules governing attorneys fees in contingent fee cases?

Back 48

1) written agreement in writing
2) which covers three topics:
a) what percentage lawyer takes
b) what expenses are included
c) whether attorney percentage comes off before or after expenses deducted.

IN CALI, also:
4) must include how work not covered by contingency fee will be paid and
5) that lawyer's fees are negotiable.

Front 49

Are there limits on the types of cases which can use contingent fees?

Back 49

Yes. ABA: not in domestic relations or criminal cases.

Front 50

Can a lawyer hired on contingency fee recoer any fees if the client relationship ends before contingency/judgment?

Back 50

Yes, if client eventually wins, then lawyer may recover in proportion to the work he did

Front 51

When are fees to high?

Back 51

ABA: Fees must be reasonable in light of all circumstances
CA: Fees must NOT be unconscionably high

Front 52

Can an attorney withdraw from a representation if the client refuses to accept a reasonable plea deal?

Back 52

Yes

Front 53

Can an attorney hired on contingency fee demand an hourly rate for work performed if he or she withdraws?

Back 53

Yes, if it is reasonable

Front 54

Can an attorney representing multiple clients bill both clients for the same activity?

Back 54

IN Cali: only if not unconscionable, clearly disclosed at outset of relationship, and clients consent.

Front 55

Can lawyers be resquired to paricipate in fee artibration?

Back 55

Yes

Front 56

Is it okay to split fees with other lawyers in your firm?

Back 56

Yes

Front 57

Is it okay to split fees with other lawyers from a different firm?

Back 57

Yes, so long as:
1) written disclosure to client
2) client consents
3) fees are ethical
4) in ABA, division in sproportional to the work done by each (unless each is jointly responsible for the action).

Front 58

Is it okay to split fees with non lawyers?

Back 58

NO, except:
1) death penefits paid to deceased lawyer's firm or heirs for this work
2) fees passedon as salaries to non lawyer employees
3) shareing of court awarded fees with a nonprofit organization that employed or recommended the lawyer

Front 59

Can a lawyer pay for a qualified referral service?

Back 59

Yes

Front 60

Can a lawyer partne with nonlawyers in providing legal services?

Back 60

NOT IF YOU ARE A PRACTICING LAWYER

Front 61

Can nonlawyers be shareholders in a law firm?

Back 61

No

Front 62

Are multi-disciplinary practice shops acceptable?

Back 62

No

Front 63

Are reciprocal referras with other professional services acceptable?

Back 63

Yes, so long as expalined to client

Front 64

If you personally provide non=legal services, hen ethcial rules do or do not apply?

Back 64

YES

Front 65

If youprovide separate, non-legal services to a client in addition to legal work, does the attorney client privilee aply?

Back 65

NO, and you must tell the client that

Front 66

Can a lawyer control non-lawyers?

Back 66

Yes

Front 67

What must you, as a lawyer, do with client-owned funds?

Back 67

Place it in an individual client trust trust account or, for small funds held for short times, can place in a pooled client trust account

Front 68

What must you, as a lawyer, do with client-owned property?

Back 68

Label it and place it in a safe place (eg. office)

Front 69

What must you, as a lawyer, do with client-owned funds if they are in dispute?

Back 69

Withhold dispute portion in the client trust account til resolution

Front 70

How long does California require you to keep records of your client's property/

Back 70

5 years after distribution

Front 71

Are you required to carry professional liability insurance?

Back 71

No, although:
-ABA may administratively suspend you if you fail to report whether you have it or not and
-CA requires you to disclose in writing the lack of insurance to any client needing more than 4 hours.

EXCEPTIONS: government lawyrs, in house lawyers

Front 72

What are the consequences for breaching duty of competence?

Back 72

1) discipline by Bar
2) disqualification in litigated matter and
3) civil malpractice liability

Front 73

What is "competence' for purposes of client duties?

Back 73

Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

Front 74

Can you accept a case if you are a novice in the relevant area of law?

Back 74

Only if you can
1) learn it without undue expense or delay or
2) you associate with a lawyer competnet in the area

Front 75

What is the difference between a malpractice action and a disciplinary actioN?

Back 75

-Malpractice brought by P for money damages.
-Administrative brought by state bar to protect public.

Front 76

What is the "pro bono exhortation?"

Back 76

Lawyers should accept the case of the defenseslss or oppresesed if your only reason to refuse is selfish, and do a fair share of the work without charge

Front 77

When MUST you reject a case?

Back 77

If you would violate a law or ethical rule to take it

Front 78

What decisionsdoes the client have the right to make in a case?

Back 78

Decisions with regard to substantive rights

Front 79

What decisions does the lawyer have the right ot make in a case?

Back 79

legal strategy

Front 80

When MUST you withdraw from representation

Back 80

1) Fired OR
2) Continuing would violate law or ethical rule OR
3) If client only brining suit to harrass

Front 81

When MAY you withdraw from a case if you want?

Back 81

1) If you convince the court there is good cause AND
2) withdrawal will not cause undue delay or disruption
3) CA: If client breaches fee agreement
4) ABA: when client breaches an obligation to you after being awrned OR representation places unreasonable burden.

Eg. If client insists on actions you find repugnant

Front 82

What is the process for withdrawing from a case?

Back 82

1) provide timely notice to the client AND
2) promptly return
a) any unspent fee and expense advances
b) property and material papers of the client, including work product.

Front 83

Can you have consensual sex with your client?

Back 83

ABA: Only if you had a preexisting sexual relationship.
CA: Yes, with cautions.

Front 84

When can the government regulate attorney advertising?

Back 84

When three factors are met:
1) government asserts a substantial interest (citizen privacy, preserving dignity of profession, etc.)
2) regulation directly advances that interest
3) regulation is narrowly tailored

Front 85

What is considered advertising for lawyers?

Back 85

Any lawyer's communication with the public at large?

Front 86

What are the specific regulations on lawyer advertising?

Back 86

1) must not be false or misleading
a) not omit or mislead material information
b) doesn't raise unjustified expectation so rmake unverifaible predictions
c) no guarantees, warranties, or predictions of a result
d) no testimonials without express disclaimers
2) no adveritsements of speciality unless you are a certified specialist:
a) experience
b) examination
c) education
d) evaluations.
3) must not be used to harrass or solicit someone who has asked to be left alone
4) targeted direct mailing must be clearly labeled
5) all ads must identify if they are dramatizations or impersonations
6) identify at least one lawyer responsible for contents
7) keep records of content and placement for two years