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118 Cards in this Set
- Front
- Back
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Sources of regulation
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- State regs
- Fed regs -----the fed courts regulate their own admission have own requirements. Generally if member of state in which court sits & pro hac vice |
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Admission to the Legal Profession
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- Must be rationally related to fitness/capacity to practice.
- Citizenship and residency reqs are invalid. |
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Character requirements
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- Each applicant to cooperate to proce GMC.
- Hearing & judicial review if app denied. - No rejection for personal beliefs that do not advocate illegal action |
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What can't attorneys do?
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1. Violate/attempt to violate RPC, knowingly assist or induce another to do so, or use acts of another to commit violation.
2. Commit crime reflecting adversely on att's honesty/fitness to practice. 3. State/imply ability to improoperly inluence govt agency/official or achieve results by illegal/unethical methods 4. Engage in conduct involving dishonesty, fraud, or misrepresentation 5. Knowingly assist judge in conduct that violates CJC or law. |
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Disciplinary Procedure
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- Starts with complaint to bar
- Examined by screening committee - Non-public hearing w/right to atty, X-exam, 5th A privilege |
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Forms of disciplinary sanctions
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Disbar, suspend, censure
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Effect of Disciplinary Action on Other Court Systems
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State Courts: each state system separate & does own eval of conduct.
Fed courts and agencies: Not required to suspend from federal bc suspended in state |
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Unauthorized practice of law
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- Cannot practice where not licensed.
- Cannot assist another to commit unauthorized practice - Can work where special knowledge of law is required as long as attorney's professional judgment is not involved. - Anyone can represent themselves. |
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Temporary Practice
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- Association w/ local lawyer who participates in case
- Special permission to practice in local tribunal (pro hac vice) - Mediation/arbitration services arising out of home practice - Other temporary practice r/ably related to home practice. |
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Permissible permanent practice
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- Salaried ee of atty's only client (in house counsel)
- Authorized by law (MJP) |
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MJP
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1. In-House Counsel
2. Legal Services Attorney 3. Judges & law students 4. Law firms and non-lawyers |
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In-House Counsel
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- Must register w/CA bar and pay annual dues
- Cannot make CA court appearances or engage in other acts requiring pro hac vice admission - Cannot represent employer's officers, shareholders, employees, etc., as individuals. |
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RLSA
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- Max 3 years CA practice
- Under supervision of CA atty - Register w/CA bar and pay dues - Comply with educational, character, and disciplinary reqs - Not available to lawyer that failed CA bar w/in 5 years |
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Judges and Law Students
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- Judges can't practice if full-time judge
- Students can represent clients only when authorized under CA atty supervision. |
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Law Firms and Non-Lawyers
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- Non-Ls cannot own interest, be a partner, or an officer in firm.
- Non-L cannot direct atty's professional judgment. |
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Firms
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- Client's interests are paramount to firms
- Name cannot be false/misleading - No use of atty's name in public office during any substantial period in which atty is not actively and regularly practicing with firm. - Multi-state firm must list jx limits of attys. |
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Lawyers associated with non-Ls
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- No partnership w/non-attorney if activities consist of practice of law
- No sharing legal fees with exceptions - Lawyer to exercise independent judgment |
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Exceptions to rule against sharing legal fees
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- Payment via K after atty's death for r/able time
- Payment of purchase price of practice - Payments pursuant to compensation or retirement plan - Sharing court-awarded legal fees w/non-profit org that employed/recommended lawyer in the matter |
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Legal Corporations
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- Atty in corp liable for own malpractice
- No non-L interest |
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Legal services orgs
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- Atty may serve on board even though do not practice w/org, even if org's clients interests adverse to atty's clients
- Must not knowingly participate in decision incompatible w/atty's obligation to clt.--- |
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Responsibilities of Partner/Supervisory Lawyer
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- Atty liable for another's RPC violation if:
- Atty orders/ratifies conduct involved. - Atty has direct supervisory authority and knows of conduct when consequences can be avoided/mitigated but fails to act - CA RULE: Liable if approved conduct or knew of it and did not try to prevent |
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Responsibilities of Subordinate Lawyer
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Still bound by rules even if directed to act by another atty
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Sale of Practice under RPC
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- Must sell entire practice/entire area of practice
- Seller must cease private practice or cease practicing law in that practice are in the geographic area. - Client fees cannot increase b/c of sale. - Notify clients of sale and rights to hire diff lawyer or take their file. |
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CA sale of practice
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- Notice to clients is more complicated
- Does not require seller to stop practicing - Can sell all/substantially all of the practice while retaining a few clients who pose COI for purchaser or who have long relationship with seller. |
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Advertising and Solicitation Rules Background
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False and misleading advertising may be banned, as well as in-person solicitation for profit.
Regulation of truthful/non-deceptive advertising gets intermediate scrutiny. |
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Advertising
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- Communications must be true and not misleading
- Identity of advertiser and address req'd - Cannot pay people for referral except IRS and in CA - Recipricol referral agreements are OK so long as not exclusive and clt informed |
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Additional CA restrictions on advertising
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- No guarantee/warranty of outcome
- No words/symbols suggesting quick cash or quick settlement - Disclose impersontions and dramatizations. - No contingent fee offer that doesn't warn when client still pays. |
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Communication presumed false/misleading
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- Delivered to potential clt in hospital or suffering from stress
- Mailings seeking fee-paying work not clearly labeled as ads - Communications containing testimonials/endorsements w/o disclaimer that they are not a promise about results. |
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Solicitation
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- No in-person/real-time solicitation for $$ w/prospective clt who is not a laywer and with whom lawyer has no pre-exisitng relationship.
- No use of agents to solicit in manner atty cannot - Targeted mail solicitations are okay if truthful, unless they know clt doesn't want it. |
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Communication of Fields of Practice
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-Okay to hold out as certified specialist if:
1. Organization granting certificate approved by state bar or accrredited by ABA and, 2. Communications clearly identify certifying organization |
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Accepting appointments by court
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Cannot avoid except for good cause (violation of RPC, state law, unr/able financial burden)
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Client w/ diminished capacity
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- Have as normal of a relationship as possible.
- Take protective measures if r/ably believe clt cannot protect self - In CA cannot seek guardianship against clt's wishes |
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Emergency legal assistance to non-client w/serious diminished capacity
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Take legal action on behalf of person so long as person or agent consulted atty
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Concurrent conflicts of interest: CAN'T REPRESENT
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- Representation directly adverse to interests of another client
- Significant risk that representation will be severely limited by atty's personal interest, or interests of another client, former clt, 3P |
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Concurrent COI: CAN REPRESENT
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- R/ably believe can competently and diligently represent each client
- Representation not prohibited by law - Not client v. clt - Each client gives informed, written consent |
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CA standard for concurrent COI
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- Not r/able atty standard
- Applies to potential and actual concurrent COIs - Requires written disclosure if conflict arises out of prior relationships/personal interests |
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General Imputed Conflicts
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- Atty's conflicts impute to others in his firm
- Can waive if clients give informed, written consent |
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General rules re: imputed conflicts DO NOT apply when:
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- Conflicts caused by former and current govt attys
- Conflicts caused by purely personal interest - Conflicts caused by conflicted atty's close family relationship w/another atty rep'ing different clt in matter - Conflicts from atty's sexual relationship w/clt |
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No biz transaction w/clt or knowingly acquiring ownership/pecuniary interest adverse to client UNLESS
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- Fair and r/able to clt and fully disclosed in writing
- Clt advised to seek independent counsel - Clt gives informed written consent |
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Designating oneself or one's relatives as beneficiary of client?
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Not okay unless the donor is the atty's relative.
CA rule? Just can't induce gift. |
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Literary/Media Rights
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RPC - not prior to end of representation
CA - no ban but cliient must be informed of potential COI |
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Financial assistance to clt
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- Only to advance litigation costs or pay them for indigent client.
- CA rules? Atty cannot promise to pay clt's debts and atty can lend clt $ for any purpose if written K to repay. |
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Compensation from Party Other than Clt
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- Client must give informed written consent
- No interference with atty's judgment or w/atty-clt relationship - Information relating to representation must be protected. |
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Aggregate Settlement or Agreement in Multi-Rep
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- Only if informed written consent from all co-parties
- Lawyer must explain existence and nature of all claims/pleas involved and the participation of each person in the settlement agreement |
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Limiting Liability for Malpractice
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- RPC - not unless client has independent counsel for agreement.
- CA rule? NEVER |
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Lawyers closely related to each other
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- Informed consent before representing clients on same/substantially related matters.
- CA's additional relationships: When one atty is client of another, when 2 attys live together, and when 2 attys have intimate personal relationship |
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Prioprietary Interest in COA
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- Not OK except lien for fees or K for contingent fees
- CA does not allow liens |
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Sexual Relaions btw Atty and Clt
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- Only if existed before atty-clt and no affect ability to represent.
- In CA: cannot demand sex as condition of representation. No sex via undue influence/coercion. Must represent competently. |
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Conflicts raised by Liability Ins
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CA - insurance co and policyholder are joint clients when co chooses atty for holder.
- Ins K does not govern atty conduct |
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Former Client Conflicts
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- Atty who formely represented clt may not then represent another clt in same or substantially related matter if interests are advers to former clients unless the former client gives informed written consent.
- Can't do it if you got confidential info unless informed written consent. - Can't reveal or use info to former clt's disadvantage unless generally known or allowed by RPC |
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Prospective Client Conflicts
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- May not rep clt w/ ints adverse to prospective clt in same/substantially related matter if has received info that could be significantly harmful to prospective client UNLESS: Informed written consent of both clients or Dq'd atty screened and doesn't share fees.
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Trial counsel as witness
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- Can't serve as trial counsel when likely a necessary witness.
EXCEPTIONS - Testimony only re: nature and value of legal services - W/drawal of counsel = substantial hardship to client. CA additional exception: client consent. |
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Organizational Conflicts
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- Lawyer reps Org
- Lawyer must act in org's best interest. - Report up and report out if no action if r/ably believe necessary to prevent substantial injury to corp. - Must explain to constituents that rep entity. |
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Multiple Reps Permissible?
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Yes may rep corp and ees, shareholders, etc., if meet COI rules
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Sarbanes-Oxley
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- Must report to CLO if corporation or its ees violating SEC laws.
- If violation found, CLO to take all r/able steps to get corp to make "appropriate response" - When appropriate response not taken, atty reports to BOD - Can report to SEC if r/ably necessary |
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When is it reasonably necessary to report to report under sarbanes-oxleg?
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- to stop clt from committing violation that will cause substantial financial injury
- Rectify financial injury if atty's services used - Prevent client from committing/suborning perjury in SEC matter or lying in any matter w/in fed jx - Conflicts with CA strict confidentiality rule |
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Lawyer's Former Firm
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- When atty leaves firm, firm not barred from repping one with interest materially adverse to those of a client rep'd by formerly associated atty and not currently repped by firm UNLESS
- matter is the same or substantially related, and - Any atty remaining in firm has confidential info BUT, client can waive disqualification |
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Prior public employment creates COI
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- Can't rep clt in connection w/ matter in which personally and substantially participated as govt ee unless agency gives informed written consent.
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Screening procedure for former gov ee
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Others in firm can rep if screen atty from case, atty gets no part of fee, and notify gov't agency
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Screening of former gov atty w/ confidential gov info?
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- Atty cannot rep clt w/adverse interests to person about whom have confidential gov't info
- Can use screening for others in firm to represent |
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Stricter conflicts rules for current gov attys
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If atty formerly repped private clt in matter and gained conf info, same or similar case PLUS gvs informed written consent
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Current gov atty seeking private employment
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Cannot seek employment with party or party's atty in matter in which atty participating personally and substantially.
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Later representation by former judges
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Must not rep anyone in a matter in which participated as judge, adjudicative officer, law clerk, mediator, arbitrator, or 3P neutral UNLESS all parties' informed written consent.
Can use screening so that others in firm can represent. |
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Third-Party Neutrals
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- Attorney does not represent either party and must tell them that.
- Must explain the difference between 3PN and attorney. |
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Duty to Avoid Fee Misunderstandings
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1. Communicate fee to client w/in r/able time of relationship.
2. CA requires writing if more than $1000 UNLESS - Client is corporation - Client statesw in writing that she does not want agreement - Client has recieved & paid for same services before - atty acted in an emergency - writing impractical for other reasons. |
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Fee must be R/able
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- Consider time, labor, skill, customary fee, amount involved, result, experience, ability, reputation of attorney
- CA bans unconscionable fees |
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Contingent fees
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- Must be written, signed by client & state method of determining fee
- Not available in crim or family matters - If fired, atty gets r/able value of services performed if/when client wins |
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Dividing fees w/ outside atty
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- If both work on the case
- Fee split in writing and signed by client - CA can pay atty referral fee if client consents in writing |
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Basic obligations of Competence & Care
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- R/able attorney standard
- Competent = legal knowledge, skill, thoroughness & preparation r/ably necessary for representation |
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Special CA obligations for competence and care
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- Supervise work of subordinate attys & non-atty EEs.
- Act w/r/able diligence & promptness in repping clt |
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Lawyers responsibilities to Clt
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1. Basic obligations of competence and care.
2. Duty to preserve confidentiality 3. Duty to protect client's property |
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Atty-clt privilege
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- Client can refuse to testify and prevent atty from testifying
- Confidentail communications protected |
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Corporate clients and confidentiality
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- Comms w/ atty and high-ranking officials
- Comms between atty and corp EE if w/in scope of employment and under corp direction and to assist corp in getting legal advice. |
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Scope of privilege
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- Atty and clt and their agents during relationship and "on the road" to relationship, comms re: legal services
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Duration of Privilege
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Indefinite.
CA - ends when dead clt's estate settled. |
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Exceptions
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- Crime/fraud
- Atty v. Clt - Joint Clts - Competency re: will - CA Additional: Prevent crime likely to result in death/substantial injury |
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Duty of confidentiality
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- indefinite
- Cannot reveal info re: representation |
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RPC Exceptions (permissive)
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- Client's informed consent
- Impliedly authorized to carry out representation - Atty believes necessary to prevent death/substantial injury - Required by court order, RPC or statute - Necessary to get legal ethics advice |
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CA Exceptions created by case law
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- Compelled by law/court order
- To collect atty's fee - Defend against claim of malpractice, IAC, or wrongdoing - Necessary to prevent crime of death or substantial bodily harm |
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Evaluation for 3Ps
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May provide eval of matter affecting client for 3P use if:
- R/ably believe making it is compatible w/other aspects of relationship w/client AND - Atty obtained client's informed consent if eval likely to materially harm client's interest |
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Duty to protect clt's property
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- Cannot comingle client's prop w/. atty's
- Must keep records of client property - Keep client informed and deliver property to person entitled to receive - If dispute over funds, must keep disputed amount separate. - In CA - must preserve records of client property for 5 years after distro |
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Duty as adviser
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Exercise independent and professional judgment and render candid service
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Scope of representation
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- Client decides, limited by law and RPC
- Means and objectives - Client decides objective Criminal - what plea, jury trial, testify Civil - settle and what terms |
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Is it okay to limit the scope of representation?
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OK if r/able and client consents
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Assist client in crime/fraud
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- Atty must w/draw if client insists on illegal/unethical acts, if atty learns clt using services for crime/fraud.
- If clt has used/is using services to commit crime or fraud that has or will cause substantial financial/property injury, may reveal confidences to prevent, rectify, or mitigate injury. (NOT CA) - Atty must reveal confidences if the only way to avoid assisting client's crime or fraud |
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Communication w/represented parties
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- Can't talk to someone if you know they're represented unless you have OPC's consent or other court/legal authorization.
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Communications w/ represented parties in the corporate context
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Need org's atty's consent before communicating w/ constituent:
- Who supervises/regularly consults w/org atty re: matter - W/the authority to obligate org re: matter - Whose conduct in matter may be imputed to org OK to talk to former constituents w/o permission |
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Communications with unrepresented people
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- May talk w/person directly
- Must not state/imply disinterested - Do not give advice other than to obtain atty |
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Respect for Rights of 3P
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May not use means w/no purpose other than to embarrass, delay, or burden eP or methods of obtaining evidence that violates 3P's rights.
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Documents sent inadvertently
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Promptly notify sender when receive
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Truthfulness in statements to others
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Must not knowingly make false statement of material fact/law to 3d person.
Must not knowingly fail to disclose material fact to 3P when necessary to avoid assisting clt's crime/fraud unless disclosure prohibited. |
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Candor to tribunal
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Must not knowingly:
- make false statement of material fact/law - Fail to correct false statement previously made by atty - Fail to disclose controlling legal authority directly adverse to clt's position and not disclosed by OPC - Offer false evidence |
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False evidence
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- Must not knowingly offer.
- If only part of W's testimony false, allow only truthful part. - If clt insists on perjury, first try to convince not to do it. - If clt persists, must refuse to offer. - May ask to withdraw, but it's not required unless atty-clt relationship so strained that cannot competently represent. |
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Can you refuse to offer evidence?
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If you reasonably believe it to be false.
Except Def's tesimony in criminal case. |
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Reasonable remedial meausres if false evidence offered
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1. Talk to client/witness to get cooperation in w/drawing or correcting.
2. Ask court permission to w/draw if no cooperation 3. Last resort = must disclose enough info to set matter straight, even if info otherwise protected. |
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Criminal Defendants and False Evidence
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1. Must allow D to testify, even if r/ably believe will be false.
- Try to convince D to be honest - May ask to w/draw - Disclose as last resort 2. CA approach - Try to convince D to be honest - Ask to wthdraw - Allow Def to testify in narrative. |
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Required Ex Parte Disclosures
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Inform tribunal of all material facts that will enable informed decision whether or not facts adverse to client.
CA = No special duty of candor. |
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Conduct of litigation
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- No frivolous claims or defenses
- R/able efforts to expedite |
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In dealing with OPY and OC, must NOT
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1. Unlawfully obstruct OPY's access to evidence or unlawfully alter, destroy, or conceal item w/potential evidentiary value.
2. Knowingly disobey court rules 3. Make frivolous discovery requests or fail to make r/ably diligent effort to comply w/proper requests 4. Allude to any matter not r/ably believed relevant or that will not be supported by admissible evidence, assert personal knowledge, opinion. - Request a person other than a client refrain from voluntarily giving relevant info to OPY unless: ---- Person is relative/EE/agent of client AND ----R/ably believe person's interests will not be adversely affected. |
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CA additional rules about OPY and OC
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Must not threaten disciplinary, administrative, or criminal action to gain advantage in civil suit.
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Avoiding improper contact with jurors and court
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Can't seek to influence by unlawful means, communicate ex parte w/ such person exceptt permitted by law/ct order, or engage in conduct intended to disrupt tribunal.
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Advocate in non-adjudicative proceedings
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Must disclose if in a representative capacity
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Trial publicity
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Must not make extrajudicial statement that atty knows or r/ably should know will be publicized and substantiall likely to materially prejudice proceeding.
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Mandatory withdrawal/Decline representation
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- Representation will result in RPC/law violation
- Atty's physical or mental condition materially impair ability to rep client. - Lawyer is discharged - CA rule: know/should know clt acting w/o probably cause and to harass/maliciously injure another |
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Permissive withdrawal
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- Can w/draw w/o material adverse effect on interests of client (NOT CA)
- Clt persists in action involving atty services r/ably believe is crime/fraud - Clt used atty services to perpetuate crime/fraud (NOT CA) - Clt insists on action atty finds repugnant or fundamentally disagrees with - Clt fails to fulfill obligation re: atty's services and has been warned re: w/drawal - Rep will result in unr/able financial burden on atty (NOT CA) - Other good cause |
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Must you continue court ordered representation?
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YES.
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Do you have to protect clt's interests on termination?
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Yes, req'd to extent r/ably practicable.
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Responsibilities to legal profession
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- Conduct outside of practice still bound by RPC
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Political contributions to obtain gov't employment
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May not take govt employment or judicial appointment if made contribution to obtain it.
Exceptions? Yes. 1. Uncompensated services 2. Appointment on basis of experience and process free from $ influence 3. Appointments made on rotating basis w/o regard to contributions |
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Judicial and Legal Officials
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- No false statements re: qualifications/integrity of judge, public legal officer, candidate for these positions.
- Candidate for judge to comply with CJC |
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Must you continue court ordered representation?
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YES.
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Do you have to protect clt's interests on termination?
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Yes, req'd to extent r/ably practicable.
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Responsibilities to legal profession
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- Conduct outside of practice still bound by RPC
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Political contributions to obtain gov't employment
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May not take govt employment or judicial appointment if made contribution to obtain it.
Exceptions? Yes. 1. Uncompensated services 2. Appointment on basis of experience and process free from $ influence 3. Appointments made on rotating basis w/o regard to contributions |
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Judicial and Legal Officials
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- No false statements re: qualifications/integrity of judge, public legal officer, candidate for these positions.
- Candidate for judge to comply with CJC |
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Special Role of DA
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- Refrain from prosecuting charge knows not supported by PC
- Reasonable efforts to assure accused of rt to atty and given opp to obtain one. - Not to seek waiver of important pretrial rights from unrepped D - Timley disclosure to D of all exculpatory/mitigating info/evidence known. - R/able care to prevent investigators or assistants from making extrajudicial statement DA would be prohibited from making - Do not subpoena lawyer to present evidence against D unless r/ably believe info not privileged, evidence essential, and no feasible alternative - Refrain from extrajudicial comments w/substantial likelihood of heightening public condemnation of accused |
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Reporting misconduct in RPC
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Requires atty who knows another atty committed RPC violation that raises substantial question re: atty's honesty/fitness to report
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Reporting misconduct in CA
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NO duty to report others.
Must report SELF if: - Sued for maltpractice 3x in 12 months - Found civilly liable for fraud, breach of fiduciary duty, etc. - Sanctioned for more than $1000 - Charged with felony - Convicted of certain serious crimes - Disciplined in another jx |
