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88 Cards in this Set
- Front
- Back
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Permissible Standards of Admission to a State Bar
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The general rule to remember is a rational relationship test:
• Qualifications for admission must have a rational relationship to the ability to practice law. • Educational and testing qualifications are allowed. • They may require that people graduate that individuals graduate from an approved law school • You may have to pass a bar exam, or even a baby bar exam. Citizenship is not a requirement and cannot be a requirement • A state can limit a person who is not of good moral character • Political beliefs cannot be used to deny admission to the bar (with exceptions); • State may deny admission to the bar for making false statements to the bar, or concealing information, or for failing to answer legitimate questions. |
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What is the unauthorized practice of law?
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A non-lawyer getting paid for what lawyers traditionally do.
A. only an attorney can appear in court. Exceptions: Law students (under state bar rules) and pro se representation. B. Only an attorney can draft legal documents. Exceptions: Pro se drafting of legal documents; An atty may draft a form where non-lawyers fill in the blanks. C. Only an attorney can give legal advice. (This is the hardest to apply as a bright line rule. Accountants and police officers, for example, give legal advice all the time. Use common sense. If it is an activity traditionally done by lawyers, then if a non-lawyer does it, it is likely the unauthorized practice of law). |
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What are the responsibilities of an attorney in preventing the unauthorized practice of law?
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A. an atty cannot aid a non-lawyer in an activity that constitutes the unauthorized practice of law.
B. attys cannot practice in jxns where they are not admitted. (except: pro hac vice; Other exception is that it is allowed to practice in a jxn in which you are not admitted if it arises out of practice in a jxn where you are admitted. • Ex: you are a member of the CA bar, you can go to Illinois and take a deposition even if you are not admitted to the Illinois bar. So long as the deposition arises out of a case that you are doing in ca. C. Attys cannot share legal fees with non-lawyers. |
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Attorney conduct which can give rise to discipline:
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a. violation of a disciplinary rule.
b. a criminal act, reflecting adversely on a lawyer’s honesty or trustworthiness (not every criminal act by a lawyer can be a basis for discipline) c. conduct involving dishonesty, fraud, or deceit d. conduct prejudicial to the administration of justice. e. assisting a judge in the violation of the judicial code |
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Duty to Accept Representation
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1. General rule: no duty to accept representation
2. Exception: duty to accept if court appointed; Exceptions even to this. You can say no: a. where representing the client is likely to result in violation of a law or disciplinary rule (i.e. Conflict of interest) b. where representation would impose an unreasonable financial burden on the lawyer |
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Duty to Reject Representation
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1. Representation which will result in violation of the law or a disciplinary rule
2. Representation which will require filing a frivolous claim/defense 3. If the attorney is not competent to handle the matter (or if lawyer's strong personal feelings may impair ability to act competently) |
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Termination of Client Relationship -- Permissive Withdrawal
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An attorney may withdraw from representation for any reason if withdrawal does not have a material adverse effect on the client’s interest or the client consents; An attorney may withdraw despite an adverse impact when the circumstances are so severe as to justify harm to the client’s interests and:
• The client persists in criminal or fraudulent conduct • The client has used the attorney’s services to commit a past crime or fraud • the client’s objective is repugnant or against the lawyer’s beliefs • the client breaks his promise to the attorney • the representation imposes an unreasonable financial burden on the attorney • the client will not cooperate in the representation • other good cause for withdrawal exists. |
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Termination of Client Relationship: CA 3-700
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Basically, you can’t quit your job without taking “reasonable steps to avoid reasonably foreseeable prejudice” to your clients.
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Termination of Client Relationship -- Mandatory Withdrawal
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a. where it becomes clear that the client’s primary purpose is to harass or delay
b. where representation will require violation of a law or ethical rule (Lawyer can always say no when a client asks, but if they must violate a law or ethical rule in order to represent the client, he must withdraw) c. when the lawyer’s mental or physical health makes it unreasonably difficult for the lawyer to provide effective representation. d. when the client fires the lawyer (Remember: if it is in the middle of litigation, lawyer must seek court permission to withdraw. BUT, if its in the midst of litigation, the court will almost certainly deny permission). |
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DUTY OF LOYALTY:
Duty to Avoid Conflicts of Interests |
“An attorney may not represent a client if the representation of the client may be materially limited by the lawyer's responsibilities to another client, or to a third person, or by the lawyer's own interests, unless:" (both must be present)
i) the lawyer reasonably believes that the representation will not be adversely affected; and ii) the client consents. • must be informed consent • almost always now, consent must be in writing. |
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DUTY OF LOYALTY:
Conflict of Interest: Imputed Disqualification |
If one atty in an office is disqualified for a conflict of interest, all attys in the office are disqualified (not for personal conflict of interests though).
Exception: Screening. o The disqualified lawyer must be screened and apportioned no part of the fee; “a fictional wall must be built around that lawyer so that everyone in the firm knows not to talk to the lawyer about that matter.” o Former client must be notified if that former client is involved o Certification of compliance must be provided. The former client, or whatever was the basis for the disqualification, must be notified. |
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DUTY OF LOYALTY:
Conflicts of Interests Among Current Clients (MR 1.7) |
General RULE: Generally, you may represent clients with potential conflicts with proper consent, but it rarely is proper if their interests are in actual conflict.
a. an atty may not sue a current client, even in an unrelated matter (breach of fiduciary duty). b. an atty may represent multiple parties in a lawsuit, so long as the atty can represent them all effectively, and so long as all consent. c. an attorney representing multiple parties shall not participate in an aggregate settlement or guilty plea unless each client consents in writing after being informed of all the agreements. (If you are representing multiple co-defendants and they are offered a plea deal, for it to be effective for all of them, the each have to agree to it in writing). d. a lawyer may act as a neutral third party among clients (a lawyer can serve to mediate a dispute; they can serve as a neutral party among them; the lawyer then must explain his or her role as a neutral, must be careful not to represent any individual, etc.) |
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DUTY OF LOYALTY:
Conflicts of Interests Between the Atty and the Client's Interests (MR 1.8(b)-(k)) |
a. don't solicit substantial gifts from a client or prepare an instrument, except where the client is related to the lawyer.
b. don't give financial assistance to a client in connection with contemplative or pending litigation (Exception: lawyer may pay or advance court costs and litigation costs for a client) c. business deals between lawyers and clients d. prior to the completion of representation, don't acquire literary or media rights to the clients’ story. e. don't acquire a proprietary interest in the subject litigation (Exceptions: 1) a lien to secure the lawyer’s fees or expenses; 2) contingency fees) f. a lawyer shall not act as an advocate at a trial where the lawyer is likely to be a witness (Exceptions: testimony relates to an unrelated issue; testimony relates solely to the nature and value of the legal services provided; or if disqualification of the lawyer would result in a substantial hardship to the client). g. don't have a sexual relationship with a client, unless a consensual sexual relationship existed between them when the lawyer client relationship commenced. |
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DUTY OF LOYALTY:
Conflicts of Interests Between the Atty and the Client's Interests -- CA 3-310 |
Avoid adverse interests.
Must gain informed consent form client if you do engage in legal, business, financial, professional, or personal relationships with client |
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DUTY OF LOYALTY:
Conflict of Interest: Business Deals with Clients (MR 1.8(a)) |
When an atty is both a party to the transaction and representing the other party to the transaction it is always suspect. Only if all of the following requirements are met will it be ok:
1) The terms of the transaction must be FAIR and reasonable; and 2) the terms must be DISCLOSED in writing in a manner the client can reasonably understand; and 3) the client is advised in writing to seek the OPINION of another lawyer, and give him the chance to do so; and 4) the client must CONSENT in writing. Mnemonic: "First Discuss Over Coffee." |
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DUTY OF LOYALTY: Conflict of Interest
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A lawyer must not allow her personal interests, the interests of another client, or the interests of a third person to interfere with her loyalty to the client.
RULE: If an interest of you, another client, or a third party MATERIALLY LIMITS OR IS ADVERSE to loyal representation, you have a conflict of interest. ***Flag and discuss ACTUAL and POTENTIAL conflicts. |
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Duty of Loyalty to Organization
(MR 1.13; CA 3-600) |
A lawyer owes a duty of loyalty to the organization, not to the people who are its constituents (i.e. stockholder, officers, directors, etc.)
When conflicts arise, the lawyer for the organization should caution the person in question that she represents the organization, not the person. An atty may represent both an entity and an individual if all consent, and of course if the lawyer believes it is possible to do so effectively (Remember: the consent must come from other than those who are being represented by the lawyer). If the lawyer for an organization believes that an entity is violating the law, the lawyer shall act as reasonably necessary to protect the organization. |
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DUTY OF LOYALTY:
Conflicts with Past Clients |
a. a lawyer shall not be materially adverse to a former client if the current matter is substantially related to the former representation.
b. A lawyer shall not be adverse to a former client if the atty acquired confidential information that is material the current representation. (either A or B are sufficient for disqualification) |
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Duty of Competence
(MR 1.1; CA 3-110) |
In representing a client, a lawyer must act competently and with the legal knowledge, skill, thoroughness, and preparation that are reasonably necessary for the representation.
Elements: o Legal knowledge and skill (In emergency situations, a lawyer may seek assistance, but the assistance should not exceed what is reasonably necessary to meet the emergency) o Thoroughness and preparation o Maintaining competence – continuing legal education (Be up to date with the laws). A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. |
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Limitation of Malpractice Liability
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An attorney is subject to discipline for attempting to contractually limit malpractice liability
MRs have an exception: • A lawyer may try to contractually limit malpractice liability, so long as the client is represented by another lawyer in the matter. • Here’s what’s not allowed: “My usual rate is $200 an hour, but I will reduce the rate to $100 if you waive all liability.” |
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Duty of Diligence
(MR 1.3) |
(Duty to pay attention to your client): You have a duty to diligently, promptly, and ZEALOUSLY pursue your case to completion.
Diligence is the timeliness aspect of competence. Lawyers are obligated to be diligent in their client’s behalf and are required to be in persistent pursuit of the client’s matter. Once a lawyer takes on a client’s matter, the lawyer must: (i) act on the client’s behalf with reasonable diligence and promptness; (ii) act with dedication and zeal, taking whatever lawful and ethical steps are available to vindicate the client’s cause; (iii) pursue the matter to completion; and (iv) either terminate the relationship or act with the required diligence if there is any doubt as to whether a lawyer-client relationship exists. |
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Duty to Follow the Client's Instructions
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General rule: the client controls the ENDS, attorney controls the MEANS
The client controls the following: a. whether to sue in civil cases b. whether to accept a settlement in civil cases or whether to plead guilty in criminal cases c. whether to waive a jury trial in criminal cases d. whether to testify in criminal cases e. whether to appeal ***Lawyer can advise the client, but ultimately the choice is on the client. |
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Duty to Keep Client Reasonably Informed
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Lawyers have to keep clients informed of the status of the matter;
Must give the client enough info to allow them to be able to make adequate decisions in the matter. |
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Representing Clients with Disabilities/Diminished Capacity
(MR 1.14) |
An atty representing a client with a disability, must as much as possible, maintain a normal relationship
An atty may petition to appoint a guardian for the client if the atty reasonably believes that the client cannot represent his own interests (This includes minors and those with mental disabilities, for example). |
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Confidentiality
MR 1.6 |
“A lawyer shall not reveal information relating to the representation of a client unless the client gives INFORMED CONSENT, the disclosure is IMPLIEDLY AUTHORIZED in order to carry out the representation or the disclosure is permitted [by an exception]:”
Basically, no revealing client information without the client’s consent, unless: • To prevent death or bodily harm • To prevent the client from committing a crime or fraud (But not in CA) • To prevent substantial injury to another’s property (But not in CA) • To secure legal advice about compliance with the rules • To establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, or • To comply with other law or court order |
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Confidentiality
CA 3-100(b) |
"A member may, but is not required to, reveal confidential information relating to the representation of a client to the extent that the member reasonably believes the disclosure is necessary to prevent a criminal act that the ember reasonably believes is likely to result in death of, or substantial bodily harm to, an individual.”
CA 3-100 adds: o that the lawyer must make a good faith effort to persuade the client to act lawfully and also must tell the client that the attorney will reveal the information • reasonably certain death; or • substantial bodily harm The Federal Rule adds to this: • Fraud; or • Substantial harm to property, or substantial financial harm |
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Confidentiality: Inadvertent Disclosure
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MR: If attorney knows or should have known that confidential info was inadvertently sent, he must not read it, MUST notify sender and abide by that attorney’s further instructions.
CA: Rules are silent but courts are not. If info is clearly NOT privileged, follow Aerojet. If info is privileged follow WPS. No matter what, ALWAYS notify opposing counsel. CASES: • Aerojet: If documents are not privileged, then attorney can read and use them. • State Fund v. WPS: Court lays out guidelines for what to do when receive inadvertent documents: --Examine materials w/out reading them to determine if they are privileged. If privileged, lawyer should refrain from further examination. --Notify sender that privileged material was received. --Meet and confer w/ sender to resolve what to do w/ material, or if no agreement must seek guidance from the court. |
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How should an attorney handle the fruits and instrumentalities of a crime?
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The key to remember is that the lawyer cannot keep, hide, or alter the fruits or instrumentalities of a crime.
“This is yours. You have to keep it.” If the lawyer has to turn it over to the police, the lawyer must do so in a manner that is least harmful to the client. |
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How should an attorney deal with knowledge that a client will or has committed PERJURY?
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As a crime that goes to the integrity of the system, the rules are much more specific:
1) the lawyer must urge the client to rectify the fraud (to come clean; admit to have committing perjury) 2) if the client refuses, the lawyer should seek to withdraw 3) lawyer should disclose what is necessary to rectify the fraud, even if it means revealing confidential information. |
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Communication: CA Rule 3-500; 3-510
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Reasonable communication is necessary for client to effectively participate in the representation. MR is same as CA about communicating with the client but also adds that a matter shall be explained to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. (CA doesn’t specifically say this but defines the term ‘INFORMED CONSENT’ in several places.
3-510: Communicate settlement offers promptly |
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Duty to Prevent Abuse of the System
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1. An attorney shall not bring or defend a proceeding or assert or controvert an issue unless the attorney believes that there is a basis for doing so that is not frivolous
2. An attorney shall make reasonable efforts to expedite litigation consistent with the interests of the client 3. An attorney shall not seek to influence a judge or a jury in a manner prohibited by law 4. An attorney shall not engage in conduct intended to disrupt a tribunal |
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Duty of candor (honesty) to a tribunal
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1. An attorney shall not make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made by the lawyer to the tribunal (atty has affirmative obligation to come forward and correct it).
2. An attorney shall not fail to disclose a material fact when fact when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client 3. An attorney shall not offer evidence that the lawyer knows to be false. 4. An attorney shall disclose adverse legal authority that is on point and is from the controlling jurisdiction (standard: what is expected of the reasonable lawyer) 5. In ex parte proceedings, the attorney shall inform the tribunal of all material facts |
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Fairness to Opposing Counsel
MR 3.4 |
1. An attorney shall not obstruct another person's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value
2. An attorney shall not falsify evidence or counsel a witness to testify falsely (this would be supporting perjury) 3. Make a frivolous discovery request or fail to comply with discovery in good faith (discovery abuse is subject to sanctions; and also subjects the lawyer to discipline) NOTE: CA does not specifically address frivolous discovery, but remember-- lawyer cannot represent client who wants to bring action for purposes of harassing or malisciously injuring any person, OR raise an unwarranted claim or defense. 4. Make a false statement of material fact or law to a third party 5. A lawyer who receives a document relating to the representation of the lawyer’s client and knows or reasonably should know the document was inadvertently sent shall promptly notify the sender. |
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Special Duties of Prosecutors
MR 3.8 |
a. only to proceed where there is PROBABLE CAUSE.
b. to make timely disclosure of all potentially exculpatory evidence, including any evidence that may be mitigating in nature. c. to make sure that an accused is advised of a right to counsel and given a reasonable opportunity to obtain counsel d. not to seek from an unrepresented person a waiver or rights e. (important): not to subpoena another lawyer before a grand jury or other criminal proceeding, unless all of the following requirements are met: i. the prosecutor must believe that the information is not protected from disclosure; ii. the evidence is essential to the successful completion of the proceeding; and iii. There is no alternative source for the information. f. prosecutors shall not make public statements that have a substantial likelihood of heightening the public condemnation of the accused (Not allowed to say: “he’s guilty!”). |
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Suppression of Evidence
CA 5-220 |
A member shall not suppress any evidence that the member or the member’s client has a legal obligation to reveal or to produce.
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Negotiations
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“Puffery” is valid, though there is a very fine line.
What is allowed/not allowed: • CAN dodge questions. • CAN puff on availability and use of expert. • CAN puff on availability of corroborating witness. • CAN make statements made about authority to settle case or negotiate deal (Ex. “I am not authorized to do this.”) • CANNOT threaten criminal prosecution to gain advantage in civil case. |
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Voluntary Pro Bono Work
MR 6.1 |
“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year.”
MR suggests that lawyers SHOULD contribute 50 hours per year. |
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Attorney as Adviser
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1. An attorney shall not counsel a client to engage, or assist the client in engaging in conduct that the lawyer knows to be criminal or fraudulent
2. An attorney may discuss the legal consequences of any proposed course of conduct with a client and may assist a client to determine the meaning and application of the law NOTE: there is a tension between 1 and 2. You can’t go out and tell the client to violate the law because no one in history has ever been prosecuted for violating it. But, you can tell them that no one in history has ever been prosecuted for violating it. 3. An attorney shall give candid advice and may refer not only to the law, but also to moral, economic, social, and political considerations |
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Communication with Adversaries
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a. don't communicate directly with a person who the lawyer knows is represented by a lawyer in the matter, unless the other lawyer consents, or if it is permissible by court order.
b. a lawyer can communicate with a person who is not represented by counsel, but cannot give legal advice or represent that he or she is disinterested. |
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Communication with Witnesses
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a. an atty may contact all witnesses, even witnesses of an opposing party
b. an atty cannot harass witnesses, or encourage witnesses to leave the jxn to avoid testifying c. a non-expert witness may be paid only expenses incident to testifying (If it’s a material witness (a fact witness) they can be compensated for things like travel expenses). d. an expert witness may be paid a reasonable fee in addition to expenses e. no witness may be paid on a contingency fee basis. |
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Communication with Jurors
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a. before trial, no communication is allowed with a member of a panel from which the jury will be selected
(you can investigate prospective jurors though, so long as it doesn’t involve any direct contact). b. during trial, no communication with jurors is allowed, except during official court proceedings. c. after trial, an atty can contact a juror, unless prohibited by law, or the juror indicates a desire not to be communicated with, or if it involves misrepresentation or harassment. |
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Communications with Judges
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a. except in emergencies, ex parte communications are not allowed (Notice must be given to the other side that the communication occurred and what transpired).
b. no gifts may be given to court personnel other than ordinary social hospitality (No gifts to the judges or the clerks, etc. If the judge is your best friend since childhood and you regularly exchange birthday gifts, that’s ok). |
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Communications with the Press
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a. an attorney cannot make a statement that is reasonable likely to be publicly disseminated if there is a substantial likelihood of materially prejudicing an adjudicatory proceeding (Must be a statement that is reasonably likely to be publicly disseminated (do you think it will be passed around?)).
b. cannot make statements about a judge if the lawyer knows the statement to be false or acts with reckless disregard of the truth. |
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Meritorious Claims and Contentions
MR 3.1 |
“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.”
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Candor Toward the Tribunal
MR 3.3 |
(a) a lawyer shall not knowingly:
(1) Make false statements, or fail to correct them (2) Fail to disclose legal authority (3) Offer evidence that the lawyer knows to be false |
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Solicitation
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Lawyer CANNOT solicit in person, by phone, or any other real time electronic contact for pecuniary gain, UNLESS
1) They are a lawyer, OR 2) They have a family, close personal, or prior professional relationship w/ the lawyer, UNLESS • They have made it known that they don’t want to be solicited. • The solicitation involves coercion, duress, or harassment. |
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Advertising
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A lawyer is allowed to advertise their services through written, recorded, or electronic communication, subject to limitations:
• Lawyer CANNOT make false or misleading communication about the lawyer or lawyer’s services. “False or misleading” = 1) If it contains a material misrepresentation of fact or law, OR 2) Omits a fact necessary to make the statement considered as a whole not materially misleading EVERY written, recorded, or electronic communication MUST include the words “Advertising Material” on the outside envelope (if any), AND at the beginning and ending of any recorded or electronic communication, UNLESS they fit either of the previous exceptions (lawyer, past relationship. Lawyer MAY advertise online IF lawyer is licensed to practice in the state where the ad is initially placed. MUST specify jurisdiction where lawyer can practice. |
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Advertising: CA RULE
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Rules generally parallel MR BUT has set rebuttable presumptions.
Rebuttable presumptions of improper conduct: 1. Guarantees, warranties, predictions, and endorsements are presumed to be misleading. 2. Attorney has burden to prove that they are NOT misleading. |
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Client Trust Fund Account
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All money that a lawyer receives on behalf of a client must promptly be placed in a client trust fund account, separate from the lawyer’s own personal and business accounts.
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Safeguarding Client Property
MR 1.15(a) |
A lawyer must identify a client’s property as belonging to the client and must put it in a safe place.
A lawyer must keep complete, accurate, and up-to-date records of money or property received on behalf of a client, must render periodic accountings to the client, must notify the client promptly when money or property has been received on the client’s behalf, and must promptly pay over money or deliver property when it is due to the client or third party. |
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Names of Law Firms
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a. attys can continue to use the names of deceased lawyers, unless it is deceptive to do so.
b. attys must remove their names from the firm if they enter public service; BUT: CA DOES NOT FOLLOW THIS RULE. c. trade names for law firms are allowed, so long as they are not misleading, as long as they don’t imply a false connection to government or legal services if one doesn’t exist. d. attys cannot represent themselves in a partnership if they are not in that former practice. |
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Incorporation of law firms
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Firms may incorporate if state law permits it, but all officers, directors, and shareholders must be attorney
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Buying and Selling Law Firms
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Law firms used to not be allowed to be bought or sold; this has now changed. Requirements:
a. seller must stop practicing in the geographic or practice area b. the law firm or the area of practice must be sold in its entirety c. written notice must be given to clients, including their ability to seek other attorneys d. there cannot be an immediate increase in fees because of the sale |
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Duty to Provide Services at a Reasonable Fee
MR 1.5 |
Rule: No unreasonable fees.
Contingency fees, all services over $1k an hour, and fixed fees must be in writing (according to CA); MR prefers but doesn’t mandate writing for these, just that the basis for these fees be communicated to the client. Factors: o Time and labor o Fee customarily charged o Skill or reputation o Preclusion of other employment o “going rate” o the amount involved and the results obtained o time constraints o prior relationship w/ Client o nature of the fee arrangement |
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Fees: CA Distinction
CA 4-200 |
(a) A member shall not enter into an agreement for, charge, or collect an illegal or UNCONSCIONABLE FEE (ABA = "reasonable; CA is less restrictive).
• Cannot charge for time to learn the law. MUST lower rate • Should be in writing. In addition to the MR factors to consider, CA adds: • fees cannot be UNCONSCIONABLE or ILLEGAL Unconscionability: Look to all facts and circumstances: • Relative sophistication of the lawyer and client • Informed consent of client to the fee agreement. • The amount of the fee in proportion to the value of services performed. CA RULES look to the sophistication of the client |
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Contingency Fees
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With the exception of CRIMINAL CASES and DOMESTIC RELATIONS, a lawyer is permitted to charge a fee that is contingent on the outcome of the matter.
Written fee agreement required |
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Fee Splitting
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You can split fees with someone in the same firm, but you generally may not share fees with non-lawyers and lawyers from other firms (there are exceptions). Only proper if:
• It is proportionate • Client agrees, in writing • Total fee is reasonable |
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Fee Splitting: CA Rule 2-200
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A member shall not divide a fee for legal services with a lawyer who is not a partner of, associate of or shareholder with the member unless:
(1) the client has consented in writing to a full disclosure; and (2) the total fee charged is not unconscionable and has not been increased solely because of the joint arrangement. |
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Referral Fees
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A referral fee is a fee charged by a lawyer for sending client to another lawyer
Lawyer CANNOT be compensated for assuming an entirely passive fol. BUT in CA can receive gifts. DIVISION OF FEES: Financial agreements among lawyers not in the same firm may be made ONLY IF: MR: • The division is in proportion to the services performed by each lawyer OR each assumes joint responsibility for the representation. • Full disclosure of division of fees MUST be made AND client MUST consent in writing to the arrangement. • Total fee MUST be reasonable. CA: • Client MUST consent in writing. • Total fee CANNOT be increased b/c of arrangement and CANNOT be unconscionable or illegal. • Referrals CANNOT be made w/ consideration, BUT a gift can be exchanged between lawyers when a referral occurs, BUT must be careful (can’t be consideration, can’t be promise for more clients). • (Fees do not have to be divided in proportion to the services performed or require joint responsibility) |
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Billing Practices
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GENERAL RULE: Whether specific billing techniques are appropriate often depends on whether client has consented to the particular practice.
Is Time Spent Thinking Billable? Split authority. Billing on an Airplane – Billing one client for travel while preparing another’s case: --ABA has forbid this practice UNLESS client consents --If you charge client flat travel rate, then you are not violating rules (b/c this is NOT billable hours). Billing Increments --Client consent drives this issue – can have client agree to aggregate minutes --Value Billing: Value put on work done in one case, and billing second case more than actually spent on previous work. With client consent, this is okay. ABA formal opinion says this is not okay. --Bonus System: Bigger bonus for higher billing cases – can interfere w/ fiduciary relationship to smaller clients. |
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When are judges disqualified?
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***The judges must avoid even the reasonable perception that they are acting impermissibly.
1. If the judge has personal knowledge of disputed evidentiary facts, the judge is disqualified. 2. If the judge served as a lawyer (or a judge) in the matter in controversy 3. If the judge has a financial interest in the case -- --this includes the judge, the judges spouse, children, parents, and family members living in the house; --it must be a legal or equitable interest for the judge to be disqualified 4. If the judge or a family member is involved in the case 5. Exceptions a. remittal = where the parties voluntarily agree to allow the judge to participate. All the following factors must be met. i. the judge must disclose the basis for disqualification on the record. ii. all the parties must voluntarily allow the judge to participate iii. The agreement of the parties must be on the record. b. rule of necessity (i.e., if all of the judges in a jxn have been disqualified, then any of them can hear the case). |
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What conduct while serving as a judge is appropriate?
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1. A judge shall comply with all constitutional, statutory, and procedural law
2. A judge shall require order and decorum in court proceedings 3. A judge shall be patient, dignified, and courteous 4. A judge shall perform judicial duties without bias or prejudice 5. A judge shall not engage in ex parte communications (this parallels to the lawyer rule -- exception is in emergency situations: there must be disclosure that the ex parte communication occurred, and what transpired must be told) 6. A judge shall avoid and shall require attorneys to avoid expressing bias based on race, national origin, religion, gender, age, disability, sexual orientation, or socio-economic status 7. A judge shall dispose of all judicial matters promptly, efficiently, and fairly 8. A judge shall not commend or criticize jurors for their verdict, except in a court order or opinion (the only time it is permissible is on a motion, or JNOV). 9. A judge shall not disclose or use any nonpublic information gained in a judicial capacity 10. A judge shall not make comments about any pending proceeding that can be reasonably expected to affect its outcome 11. A judge shall not conduct an independent investigation of the facts; a judge can consult with a third party, but notice must be given to both sides. |
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What off-the-bench conduct by judges is appropriate?
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1. Judges are not allowed to engage in the practice of law
2. Judges are not allowed to serve as fiduciaries (but can for immediate family if not likely to come to his own court) 3. Judges may serve in a charitable or civic organization so long as it does not reflect adversely on the judge's impartiality 4. A judge shall not hold membership in any organization that practices invidious discrimination based on race, sex, religion, national origin, ethnicity, or sexual orientation. 5. A judge shall not appear as a character witness unless subpoenaed 6. Judges shall not engage in financial transactions that risk a conflict of interest 7. A judge shall not accept and urge family members to accept gifts from those likely to appear before the judge • what is allowed an not allowed: a. gifts with little intrinsic value are allowed (i.e., a plaque b. gifts incident to public testimonials, from law book publishers, and from Bar-related functions c. ordinary social hospitality d. a judge may receive a loan from a lending institution that is in the regular course of business of lending money, so long as it is on the same terms as those that are available to non-judges. 8. Judges may receive compensation for their non- judicial conduct, where permitted (like teaching) 9. A judge shall comply with the law in all of his or her activities, off the bench, as well as on. |
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Permissible Political Activities of Judges
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1. Judges and candidates for judicial office may not:
a. hold office in a political organization b. publicly endorse or oppose a candidate for office, other than for the same judicial office. c. make speeches on behalf of a political organization d. attend political gatherings e. solicit funds, or make contributions, or buy tickets for a candidate for political office f. seek or accept endorsements of political organizations g. use court staff or facilities for the campaign h. may not appoint a person to a salaried position who is given more than a designated sum 2. Judges must resign from the bench if running for non-judicial office 3. In campaigning for election or retention to the bench, a judge shall not: a. personally solicit or receive funds b. make pledges or promises of conduct in office c. knowingly misrepresent own qualifications or facts concerning an opponent d. the judge must review campaign material for his or her campaign e. the judge may do the following: --speak on behalf of his or her candidacy --may publicly endorse or oppose candidates for the same judicial office --may seek endorsement from other than a political party. |
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Mneumonic: "Diligent Lawyers Can Inform Clients Confidently"
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Diligence
Loyalty Candor Duty to keep client informed Keep client Confidences |
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Professional Discipline
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o Reprimand
o Suspension o Disbarment |
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Other Discipline
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o Malpractice
o You can be held liable for damages to a 3rd party o disqualified by a court from representing a client o forced to return earned atty’s fees o held constitutionally ineffective in a criminal defense case o or in rare cases, be criminally prosecuted. |
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Unauthorized Practice of Law
CA Rule 1-300 |
(A) do not AID any person or entity in the unauthorized practice of law.
(B) do not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction. |
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False Statement Regarding Admission to the State Bar
CA 1-200 |
(A) do not KNOWINGLY make a false statement regarding a MATERIAL FACT or knowingly FAIL TO DISCLOSE A MATERIAL FACT in connection with an application for admission to the State Bar.
(B) do not further an application for admission to the State Bar of a person whom the member knows to be UNQUALIFIED in respect to character, education, or other relevant attributes. (C) This rule shall not prevent a member from serving as counsel of record for an applicant for admission to practice in proceedings related to such admission. |
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Forming a Partnership w/ a Non-Lawyer
CA 1-310 |
A member shall not form a partnership with a person who is not a lawyer if any of the activities of that partnership consist of the practice of law.
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Employment of Disbarred, Suspended, Resigned, or Involuntarily Inactive Member
CA 1-311 |
(B) A member shall not employ, associate professionally with, or aid a person the member knows or reasonably should know is a disbarred, suspended, resigned, or involuntarily inactive member to perform the following on behalf of the member's client:
(1) Render legal consultation or advice to the client; (2) Appear on behalf of a client; (3) Appear as a representative of the client at a deposition or other discovery matter; (4) Negotiate or transact any matter for or on behalf of the client with third parties; (5) Receive, disburse or otherwise handle the client's funds; or (6) Engage in activities which constitute the practice of law. (C) A member may employ, associate professionally with, or aid a disbarred, suspended, resigned, or involuntarily inactive member to perform research, drafting or clerical activities, including but not limited to: (1) Legal work of a preparatory nature (like legal research)...; (2) Direct communication with the client or third parties regarding [basic office matters]; or (3) Accompanying an active member in attending a deposition or other discovery matter for the limited purpose of providing clerical assistance to the active member who will appear as the representative of the client. (D) [provide written notice that you are employing this person] (E) [no written notice required if you are simply hiring them to do basic office work]; (F) [you have to tell the Bar if they are terminated]. |
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Financial Arrangements w/ Non-Lawyers
CA 1-320 |
(A) Neither a member nor a law firm shall directly or indirectly share legal fees with a person who is not a lawyer, EXCEPT:
(1) An agreement between a member and a law firm, partner, or associate may provide for the payment of money after the member's death to the member's estate or to one or more specified persons over a reasonable period of time; or (2 ) [an agreement to undertake unfinished business of a deceased member]; or (3) [non-lawyers can get paid for work done on cases; like in bonuses]; or (4) A member may pay a prescribed registration, referral, or participation fee to a lawyer referral service established, sponsored, and operated in accordance with the State Bar of California's Minimum Standards for a Lawyer Referral Service in California. (B) A member shall not compensate, give, or promise anything of value to any person or entity for the purpose of recommending or securing employment of the member or the member's law firm by a client, or as a reward for having made a recommendation resulting in employment of the member or the member's law firm by a client. [...] (C) A member shall not compensate, give, or promise anything of value to any representative of the press, radio, television, or other communication medium in anticipation of or in return for publicity of the member, the law firm, or any other member as such in a news item, but the incidental provision of food or beverage shall not of itself violate this rule. |
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PR Essay Checklist Mnemonic
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"Clients Love Fierce Counsel: Courts Feel Differently."
DUTIES OWED TO CLIENTS: --Confidentiality --Loyalty --Financial Responsibility --Competence --(and other reasonable things) DUTIES TO ENTITIES OTHER THAN YOUR CLIENT: --Candor/Truthfulness --Fairness --Dignity/Decorum --(and other reasonable things) |
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CONFIDENTIALITY: General Rule
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You can't reveal anything RELATED TO THE REPRESENTATION of a client without her consent. The rationale is to maximize candor and trust, allowing the adversarial system to work.
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CONFIDENTIALITY: Scope
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The duty of confidentiality applies regardless of whether the client requested it be kept "confidential" or whether its revelation might harm or embarrass the client.
Once attached, the duty of confidentiality continues INDEFINITELY, even after formal representation ends, and even after death. |
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CONFIDENTIALITY: Distinguish from Attorney-Client Privilege
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The Attorney-Client privilege is similar to the duty of confidentiality, but NARROWER. It allows you to refuse to produce or testify about confidential communications related to the representation from your client or her agents to you. Confidentiality, on the other hand, applies regardless of the source of the information, and prohibits disclosures that could reaonably lead to discovery of information related to the representation.
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CONFIDENTIALITY: Exceptions
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1. CONSENT
2. DEFENDING YOURSELF 3. If compelled by COURT ORDER, LAW, or other ETHICAL DUTIES. (e.g., you may reveal what's necessary to prevent death or substantial bodily harm) |
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DUTY OF LOYALTY:
Conflicts of Interests Among Current Clients -- CA Distinctions |
a) Publication rights Ks -- under the ABA, a client may not sell to the lawyer the rights to a story before the representation has ended. In CA, case law discourages this conduct, but tolerates them if the judge is satisfied that the client clearly understands and consents.
b) Loans and advances to the client -- ABA prohibits financial assistance, except for costs and litigation expenses when representing an indigent, and the advance of litigation expenses in contingent fee cases. CA prohibits the promise of a prospective client's debts, but allows loans in ALL MATTERS for any purpose after the lawyer is hired if there is a written I.O.U. c) Close relationships with the other side: CA extends the "close relations" definition to include "intimates" in addition to close family members. d) Trial Counsel as witness -- ABA is more restrictive; CA only prohibits attorneys from testifying in jury trials if the client refuses written consent. |
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Procedures for WITHDRAWAL
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1. Provide TIMELY NOTICE TO THE CLIENT; and
2. You must also promptly return: a) any unspent fee and expense advances; and b) all property and material papers of the client, including everything needed to pursue the case (even work product, and even if the client has not paid!). CA forbids withholding a client's materials for not getting paid. |
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Duty of CANDOR to the court and FAIRNESS to your adversary
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A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation.
You must refuse to make a false statement of material fact, or offer evidence you know is false to a tribunal, or fail to correct a false statement of material fact or law that you previously made or presented to the tribunal. |
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Client Perjury
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You must not KNOWINGLY facilitate client perjury.
If the matter is a CIVIL case, you must refuse to call the client as a witness if you know he intends to perjure himself. However, CRIMINAL ∆s have a 5th Am right to testify on their own behalf and a 6th Am right tot he effective assistance of counsel. So, an attorney must take reasonable remedial measures, like counseling the ∆ to tell the truth or not take the stand. If ∆ insists on perjuring himself, there is a SPLIT IN AUTHORITY: CA: allow the ∆ to testify in a narrative fashion. But, do not further the deception (you may not facilitate the questions or argue the points later to the jury). ABA: you must tell the judge. The constitutional right to counsel and the duty of confidentiality do not protect perjury. |
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Witness Perjury
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You must not counsel or assist a witness to testify falsely or to become "unavailable."
If a third party witness intends to lie on the stand, you must refuse to put him on the stand. HOWEVER, if you do not KNOW that a witness intends to lie, but only have a reasonable belief that the testimony is false, these rules are PERMISSIVE. |
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Duty to state the law truthfully
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An attorney who knowingly makes a false statement of law to the court is subject to discipline. An attorney has an obligation to be candid about the law and to cite to adverse authority if it is from a controlling jurisdiction and directly on point.
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Duties of Subordinate Lawyers
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If one is under the control or supervision of another attorney who ratifies or orders them to take an action violating the ethical rules, the subordinate may not be subject to discipline depending on the situation:
If the ethical violation is a CLEAR violation, then the subordinate is subject to discipline. If the ethical responsibility is a DEBATABLE problem, then the supervising attorney is solely responsible. |
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PR Essay CHECKLIST
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I. ATTORNEY'S DUTY TO THE CLIENT:
a) The duty of LOYALTY b) The duty of CONFIDENTIALITY c) The duty of COMPETENCE d) The duty of FINANCIAL INTEGRITY (i.e., fees, client property) II. ATTORNEY'S DUTY TO 3RD PARTIES: a) The duty to OPPOSING PARTIES in litigation b) The duty to ACCEPT REPRESENTATION c) The special duty of PROSECUTORS III. ATTORNEY'S DUTY TO THE COURT: a) The duty of CANDOR b) The duty of HONESTY c) The duty to WITNESSES and JURORS IV. ATTORNEY'S DUTY TO THE PROFESSION: a) The duty to avoid UNAUTHORIZED PRACTICE OF LAW b) The duty to avoid false or misleading ADVERTISEMENTS c) The duty to not improperly SOLICIT clients |
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CONFLICT OF INTEREST: General Rule
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In simultaneously representing an insurer and insured the lawyer must see to it that neither party is disadvantaged by he common representation. If an actual conflict arises, the lawyer and the insurance company must inform the insured and invite him to retain separate counsel.
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CONFLICT OF INTEREST: Actual Conflict
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When two clients’ interests are in present and actual conflict, the attorney cannot continue to represent both parties.
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CONFLICT OF INTEREST: Potential Conflict
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A lawyer may represent two clients in a civil litigation if their interests are only potentially in conflict, provided the lawyer reasonably believes that he can represent both clients effectively and obtains the consent of both clients after consultation.
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