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57 Cards in this Set
- Front
- Back
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PR: Declining Representation |
No duty to accept representation of a client. If court appoints, can decline for good cause. 1. lawyer could not handle competently 2. Rep would result in improper conflict of interest 3. Acceptance would be unreasonably burdensome (unjust financial burden) |
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PR: Prohibited Objectives |
(CA) cannot seek, accept or continue employment if the lawyer KSK that the objective is to (1) bring an action, conduct a defense, assert a position in litigation or take an appeal without probable cause and for the purposes of harassing or maliciously injuring any person or (2) present a claim or defense in litigation that is not warranted under existing law, unless it can be supported by a good-faith argument seeking an extension, modification, or reversal of existing law |
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Duty to reject |
exists when accepting rep would violate a rule of ethics or a law or when the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client. |
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Scope of Representation |
Client: objectives and goals Lawyer: means Can negotiate scope: must be reasonable under the circumstances, client must provide informed consent No constitutional right to compel lawyer to assert an issue when lawyer uses prof judgment to decide not to |
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Mandatory Withdrawal |
Duty of mitigation to lessen adverse impact to client Both: resulting violation; attorney’s mental or physical condition materially impairs ability CA: lawyer knows or should know that client is asserting a claim or defense without probable cause and for the purpose of harassing or maliciously injuring any person |
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Permissive withdrawal |
MR: No harm to the client; if harm:
CA
Distinctions: CA can’t withdraw just because it won’t materially harm; due to unreasonable financial burden; learns that services previously used to perpetuate crime or fraud |
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Duty Regarding Fee Agreements |
Lawyer must charge fees that are reasonable under the circumstances. Consider: difficulty of the case, preclusion of other employment, nature of the relationship, expertise of the attorney, fee charged in a locality. CA prohibits illegal or unconscionable fees: fee in proportion to value of services performed; relative sophistication of both; novelty and difficulty; preclude other employment; amount involved and results obtained; time limitations; nature and length of professional relationship with client; expertise, reputation, and ability; whether fee is fixed or contingent; time and labor require; informed consent |
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CA Fee Agreement Writing |
Required if expenses forseeably greater than $1000 Exceptions: corporation; knowingly states in writing after full disclosure to right to an agreement in writing; implied by prior service of same general kind as previously rendered/paid for by client; services rendered in an emergency; writing is otherwise impracticable Contents: basis of compensation, nature of legal services to be provided, contractual responsibilities of the lawyer and client |
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Contingent fees |
MR: not in criminal or domestic relations case (when contingent on divorce or amount of support) CA: no limits except dissolution of marriage cases Agreement must be in writing with signature of client, calculation method of fee, details of calculation including expense deductions CA: must give client a duplicate copy, signed by both; must include rate, disbursements and costs; compensation for any related matters; statutory limits (medical malpractice), otherwise, statement that the fee is negotiable. Failure to comply--voidable by client; |
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Fee splitting |
Same firm: okay Diff firms: MR: proportional to work, client agrees in writing, total is reasonable; client must consent to the share each lawyer will receive CA: client consents in writing after full written disclosure of division terms AND total fee not increased solely by reason of division Cannot split fees with a non-lawyer unless: paid to lawyer’s estate/death benefit; law firm staff compensation/retirement; court ordered fee shared with a nonprofit that associated with lawyer in the matter |
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Client Funds |
No comingling recordkeeping disputed funds can’t be withdrawn CA: trust account must be in CA, no commingling except funds for bank fees; 5 years record keeping |
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Qualifying Misconduct |
A lawyer may not knowingly assist in, solicit, or induce a violation of the rules. A lawyer with specific knowledge of another’s misconduct may not ratify the conduct. A lawyer may be subject to discipline for misconduct even though a client is not harmed. |
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A lawyer may be subject to discipline for |
Committing an act involving dishonesty, fraud, deceit, or misrepresentation, whether or not it involves the practice of law. CA: Prohibits an act involving “moral turpitude, dishonesty, or corruption.” Committing a crime that reflects adversely on the lawyer’s honesty or fitness as a lawyer. MR only: Committing an act prejudicial to the administration of justice; suggesting an ability to improperly influence a government agency or official. CA: engaging in unlawful discrimination in selecting clients or managing a law practice; threatening to present criminal charges to obtain an advantage in a civil dispute. |
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Possible Sanctions |
Reprimand, censure, suspension, disbarment. |
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Malpractice Liability |
Brought by client, based on theories of contract or tort. Have to show injury (discipline, don’t need) |
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Representation Begins |
when the client reasonably believes that the relationship exists. No written agreement is required. Lawyer’s perception is irrelevant. |
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Advising about Crimes or Fraud |
A lawyer may not advise or assist the client in unlawful conduct but may discuss the consequences of a proposed course of conduct. A lawyer may take steps in good faith to determine the validity, scope, meaning, or application of the law. |
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Lawyer’s responsibilities upon termination of relationship |
must give client reasonable notice of intent to withdraw If litigation is pending, lawyer must obtain court approval. Court may require to continue. Lawyer must take reasonable steps to mitigate the consequences Law must return all client documents and property to which the client is entitled and which are reasonably necessary to the representation. Lawyer may recover fees for the value of services rendered Must return any unearned fees. Except in CA, can keep a retainer. |
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Duty of Competence |
Must provide competent representation. MR: Competence means must possess the legal knowledge, skill, thoroughness and preparation reasonably necessary for representation. CA: application of the diligence, learning, skill, and ability necessary for performance of the service. Also includes the duty to supervise the work of subordinate attorney and non-attorney employees or agents California prohibits intentional, reckless, or repeated incompetence. If the lawyer lacks the required knowledge or experience for a matter, the lawyer must associate with another lawyer competent in the area; become competent without unreasonable delay; OR decline or withdraw from representation. Client consent and lack of harm will not cure. Only exception: emergency situation, to the extent reasonably necessary. |
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Duty of Communication |
Lawyer must regularly communicate with the client and must keep the client informed and promptly comply with requests for information; communicate the scope of representation; explain matters to allow an informed decision; and notify the client about all offers to plea bargain in a criminal matter, and all written or significant settlement offers to the client in a civil matter. |
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Referral Fees |
Model Rules: lawyer may not give anything of value for recommending the lawyer unless paying the legal fees of a legal services plan or approved lawyer referral service. Reciprocal agreements okay if not exclusive, for a fixed time, and client is informed. CA: Rule for fee-splitting applies for referral fees paid to another law, however a gift or gratuity may not be offered in consideration of an understanding that the gift was forthcoming or that referrals would be made or encouraged in the future. |
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Duty of Confidentiality |
Rule of ethics that prohibits a lawyer from disclosing any information related to the representation of a client, no matter its source, absent client consent or permission from the rules. This applies to clients and prospective clients. Duty to protect: must act competently to prevent inadvertent or unauthorized disclosure of information relating to representation. Scope extends to all communications, discoverable work product, and third party communications. Exceptions: to prevent death or substantial bodily harm. CA: may reveal info to prevent a criminal act reasonably believed to result in death or substantial bodily harm, but must disclose no more than reasonably necessary to prevent. Lawyer should take steps to dissuade the client. Model Rules: no criminal act necessary, disclosure allowed to prevent reasonably certain death or SBH. Model Rules: may reveal to prevent or rectify a crime or fraud reasonably certain to cause substantial financial or property injury IF the lawyer’s services are or were used in futherance (not in CA) Both: to secure legal advice about the lawyer’s compliance with the rules’ or establish a claim or defense in a dispute with the client. |
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Lawyer-Client Privilege |
Protects a lawyer from having to disclose (for evidentiary purposes) a confidential communication made by the client for the purpose of legal representation. Waiver belongs to client. Exceptions: eavesdroppers--when in the knowing presence are not protected crime/fraud--communications made when a client seeks or uses lawyer’s services to enable the commission of a future crime or fraud are not privileged disputes--communications relevant to a dispute between the lawyer and client |
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Work product doctrine |
California provides absolute protection to an attorney’s work product. Any writing that reflects an attorney’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. Qualified protection applies to other work product and may be discoverable to prevent unfair prejudice. |
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Duty of Loyalty |
As a fiduciary, a lawyer owes a duty of loyalty to his clients, even after representation ends. Conflicts of interest trigger the duty of loyalty and can arise between clients, the client and the lawyer’s interests, between a third party payor and client, and between organizational clients and its members |
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Conflicts Between Clients |
CA: A lawyer may not represent a client whose interests actually or potentially conflict with another client unless the lawyer obtains informed written consent from each client. Model Rules: A lawyer may not represent a client whose interests are directly adverse to another client, or if representation would be materially limited by the lawyer’s responsibilities to another client, UNLESS the lawyer obtains informed consent from each client, confirmed in writing; AND the lawyer reasonably believes that he can provide competent and diligent representation to each client. BUT, representation canNOT involve claims between clients in the same matter |
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Conflict Between Current and Former Client: at the same firm |
CA: a lawyer may not represent a client whose interests conflict with a former client IF the lawyer has obtained material information from the former client UNLESS the former client provides written informed consent MR: a lawyer may NOT represent a client in the same or substantially the same matter as a former client IF their interests are materially adverse to each other UNLESS the former client gives informed consent, confirmed in writing |
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Conflict between current and former client at different firms |
A lawyer who joins a new law firm is prohibited from representing a client whose interests are materially adverse to a client of the former law firm if the matter is the same or substantially related and the lawyer acquired material, confidential information about the former client UNLESS the former client gives written informed consent. |
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conflict between current and former client, government lawyers |
MR: a former gov lawyer may not represent a client in a matter in which the lawyer participated personally and substantially as a government lawyer unless the government agency gives its informed consent, confirmed in writing CA: A lawyer who participated in the prosecution of a party may not subsequently participate in the defense of the party without incurring criminal liability. |
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Imputed Disqualification |
While lawyers are associated in a firm, none of them may represent a client when any one of them is disqualified under the rules. Exceptions: conflicts arising from a lawyer who is related to opposing counsel or due to a sexual relationship with a client, are considered personal and not imputed to the lawyer’s firm. Waiver allowed: imputation can be removed by informed consent of the client. Screening: If a lawyer switches firms and is disqualified because of a conflict, the new firm is likewise disqualified unless: the disqualified lawyer is screened off from participation in the matter; the disqualified lawyer is not apportioned any part of the fee; and the former client is given written notice and at the client’s request, certification of compliance with the screening procedures. |
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Conflicts with the lawyer’s interests |
A lawyer may not represent a client if representation will be materially limited by the lawyer’s own interests EXCEPT: in California, by written disclosure to the client. Model rules: if the client gives informed consent confirmed in writing AND the lawyer reasonably believes he can provide competent and diligent representation. A lawyer may not represent a client if the lawyer is in a close relationship with opposing counsel (includes a relative, spouse, or domestic partner), except in California by written disclosure to the client; under Model Rules, only if each affected client gives informed consent. MR: Lawyer may not have sexual relations with a client. CA: okay but can’t demand as a condition, use coercion or intimidation, or continue to represent client if sexual relations cause L to perform L’s duties incompetently A lawyer may not act as both lawyer and witness, unless the lawyer’s testimony relates to an uncontested issue or the nature and value of legal services that the lawyer has provided. CA allows waiver with informed written consent. |
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Duty of Loyalty: Proprietary Intent |
MR: lawyer may not acquire a proprietary interest in the cause of action or subject matter of the litigation. EXCEPT for contingent agreements or liens to secure payment of lawyer’s fee CA: no equivalent. A lien to secure fees is allowed if it complies with rule regarding business transactions with a client. |
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Duty of Loyalty: Financial Assistance |
MR: A lawyer may not provide financial assistance unless it’s made in connection with ongoing or expected litigation. A lawyer may advance court costs and litigation fees, repayment of which may be contingent on the outcome of the case. Repayment is not required for indigent clients. CA: A lawyer may not provide financial assistance to the client. Payment of any personal or business expenses of a current or prospective client is prohibited. A lawyer may advance court costs and litigation fees IF REASONABLE, repayment of which may be contingent on the outcome of the case. Lending okay after representation, providing that promise to repay is in writing CA: Client’s expenses may be paid directly to third parties out of any recovered amount IF the client consents |
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Duty of Loyalty: Business |
A lawyer may not enter into a business transaction with a client or knowingly acquire an adverse ownership or financial interest UNLESS the terms are fair and reasonable to the client and disclosed in writing; the client is advised in writing about, and given a reasonable opportunity to seek independent counsel; and the client gives informed consent in a signed writing |
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Duty of Loyalty: Literary or Media Rights |
Model Rules: Prior to the conclusion of representation, a lawyer may not make nor negotiate an agreement giving the lawyer literary or media rights based on the representation. CA: No rule, okay as long as lawyer complied with business transactions rules. |
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Duty of Loyalty: Solicitation of Gifts |
Lawyer may not solicit a client to make a substantial gift to the lawyer or the lawyer’s immediate family, unless the client is related to the lawyer. MR: rule extends to other relatives and individuals in a close familial relationship with the lawyer. A lawyer may not prepare an instrument in which a substantial gift is made to the lawyer or lawyer’s relative. CA: instrument drafting not barred but may subject lawyer to discipline if they exerted undue influence when drafting. |
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Duty of Loyalty: Conflicts with 3rd Parties |
Lawyer must not accept compensation from a third party for representing a client UNLESS there is no interference with the lawyer’s professional judgment, Client confidentiality is protected, and the client gives informed consent. CA: consent has to be in writing. Also in CA, disclosure or client consent is not required if a public agency is paying a lawyer to provide legal services to the government or the public. |
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Duty of Loyalty: Conflicts when Representing an Organization |
The lawyer represents the entity and must act in its best interest and does not owe a duty of loyalty to the individual members, officers, directors, or employees. The lawyer must avoid misleading individuals and explain to whom the duty is owed. A lawyer may jointly represent an organization and its employees, if the lawyer complies with the rules regarding conflicts of interest between current clients. Reporting and Disclosing Misconduct: When a lawyer knows that an agent of the organization is acting or intends to act in a way that is or may be illegal or likely to cause substantial injury to the organization, the lawyer must act in the best interests of the organization and urge the individual to reconsider; and if that fails, the lawyer must report the misconduct up the ladder to the highest authority in the organization. Reporting out: MR: If the entity fails to act after the lawyer has exhausted internal remedies, the lawyer may disclose misconduct outside of the organization to the extent necessary to prevent substantial injury. CA: If entity fails to act, the lawyer may not disclose per the duty of confidentiality, but the lawyer may withdraw if the client persists in illegal conduct. |
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Duty to Avoid Frivolous claims |
A lawyer must not present a claim or defense not warranted under the law or supported by a good-faith argument for extension, modification, or reversal. A lawyer must not assert a claim without probable cause in order to harass or injure. |
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Duty of Candor |
MR: A lawyer must not knowingly make a false statement of fact or law to a tribunal and must correct a prior false statement of material fact or law. A lawyer must disclose controlling adverse legal authority if not disclosed by opposing counsel. CA: L must not seek to mislead the court by an artifice or false statement. A lawyer is restricted to use of means consistent with truth. A lawyer must not knowingly misquote or cite invalid legal authority. Owed in court and any ancillary proceedings |
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False evidence |
A lawyer must not offer evidence knowing it to be false. If the lawyer has only a reasonable belief the evidence is false, the lawyer has the discretion whether or not to offer it. Before false testimony has been given, a lawyer must take reasonable remedial measures to prevent a client from presenting false testimony and urge the client not to testify falsely. If the client refuses, the MAY seek court permission to withdraw. If a motion to withdraw is denied or not feasible then MR: lawyer must notify the court. CA: lawyer must not breach client confidentiality, but may permit the client to testify in an unguided “narrative fashion”. A lawyer cannot rely upon the client’s testimony during the closing argument. After false testimony: lawyer must take reasonable remedial measures and urge the client to withdraw the false statement. If that fails, the lawyer may seek permission from the court to withdraw, if feasible. If withdrawal is not an option: MR: the lawyer MUST notify the court. CA: the lawyer must not disclose the client perjury. Duty of candor continues until final judgment had been rendered on appeal or the time for appeal has passed. MR resolves conflicts for the court; CA resolves for client. |
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Duty to jurors |
During proceeding, must not directly or indirectly communicate with a juror or member of jury pool. After proceedings end, contact is permitted with juror consent. |
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Trial Publicity |
A lawyer may not make any out of court statement he knows or should know will be disseminated in the media, if there is a substantial likelihood it will materially prejudice a proceeding. CA: applies to lawyer’s statements or statements made on lawyer’s behalf. MR: prosecutor may not heighten condemnation of the accused and must exercise reasonable care to prevent associated person from making extrajudicial statements the prosecutor would be prohibited from making. Exception: a lawyer may make statement to mitigate recent prejudicial publicity. Allowable statements: a lawyer may state basic information such as: the claim, information in the public record, status of the investigation or step in the litigation, and the identity of a criminal defendant including information necessary to aid apprehension. |
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Prosecutor’s Duties |
Must not prosecute without probable cause. Must ensure the defendant is advised of the right to counsel. Must timely disclose exculpatory evidence. After conviction, must promptly disclose new evidence creating a reasonable likelihood of the defendant’s innocence, and investigate whether the defendant was wrongfully convicted. |
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Duty of Fairness to Opposing Party |
A lawyer must not suppress evidence she is legally obligated to produced. A lawyer must not pay or offer to pay a witness to induce specific testimony (but okay to pay or advance reasonable expenses, including pay for time slot in testifying or preparing to testify). A lawyer must not violate discovery rules or allude to inadmissible facts in court. A lawyer must not communicate ex part with judges or other officials unless authorized to do so by law or court order. A lawyer who receives an inadvertently sent communication relating to a client, and KSK of the must, must promptly notify the sender. |
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Duty not to contact represented party |
Lawyer may not communicate directly or indirectly about the subject matter of the representation with a party (MR: any person) the lawyer knows is represented by counsel, without consent of the other lawyer. If the client is an organization, a lawyer must obtain consent of its lawyer to communicate with a director, officer, partner or managing agent or other person in the organization who regularly consults with the organization’s lawyer (MR only); whose conduct in the matter may be imputed to the organization for liability; or whose statement may constitute an admission by the organization. Consent NOT required to communicate with a former employee. Represented parties can talk to each other. |
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Duty of Honesty |
When representing a client, a lawyer must not knowingly make a false statement of material fact or law to a third party or fail to disclose a material fact necessary to avoid assisting a client in a crime or fraud (unless prohibited by the duty of confidentiality) |
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Duty to Maintain Integrity of Profession: Solicitation |
A lawyer must not solicit professional employment in person or by telephone (MR or real time electronic contact) when a significant motive is pecuniary gain unless the lawyer has a family or prior professional relationship with the individual (MR or close personal relationship). In CA this rule prohibits communication with a party known to be represented by counsel in the subject matter of communication. Lawyer may not solicit employment if the prospective client makes known her desire not to be solicited or the solicitation involves coercion, duress, or harassment. A solicitation is a targeted communication directed at persons in need of a specific service. All solicitation must be labeled as “advertising”. Runners and cappers are prohibited (in CA, crim liability). In CA, presumption of rule violation when solicitation is made at the scene of an accident or en route to health facility OR made to potential client whom lawyer KSK is in such a physical or mental state that he could not exercise reasonable judgment. |
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Integrity: Advertising |
Applies to widely distributed public statements about lawyer/firm’s services. A lawyer may not make any false or misleading communications about himself or his services. In CA, the following are presumed to be false or misleading: guarantee, warranty, or prediction about the outcome of a legal matter; testimonials or endorsements or a lawyer, without a disclaimer; a trade name or designation differing from what’s used by the lawyer; a dramatization of an event or impersonation of the lawyer, without a disclaimer; a communication NOT labeled as advertisement (label on envelope and first page); an advertisement without the name and office address of the responsible lawyer. Okay content: fields of practice, fees for routine services, date and states of bar admission, degrees, memberships, and professional licenses. “Specialist” okay if not deceptive; “certified specialist” only if certified by an entity authorized by the state bar and entity is identified. CA requires a copy of any advertisement be maintained for 2 years. |
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Duty to Avoid the Unauthorized Practice of Law |
lawyer must not engage in or assist another engaging in the unauthorized practice of law EXCEPT, lawyer may associate with local counsel on a temporary basis and appear pro had vice with court permission. A lawyer who assists a non-lawyer in unauthorized practice may be subject to civil and criminal penalties and is subject to discipline under the rules. The unauthorized practicer is subject to civil and criminal penalties, but not discipline under the rules |
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Duty to Report Misconduct |
Other lawyers (MR only): lawyer MUST report misconduct of another lawyer if she has actual knowledge of misconduct that raises a substantial question as to honesty, trustworthiness, or fitness to practice law. A “substantial question” involves a material matter of clear and weighty important. Of one’s self (CA): a lawyer must self report her own misconduct in writing within 30 days of having knowledge of: the filing of 3 or more lawsuits in one year alleging malpractice or professional misconduct; judgment for fraud, misrepresentation or breach of duty; or a felony charge or conviction (felony or misdemeanor) for misconduct committed during the practice of law demonstrating dishonesty or moral turpitude. Failure to report is grounds for discipline |
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Duty to Supervise Others |
MR only (CA deals with it under the duty of competence) A lawyer with managerial authority must make reasonable efforts to ensure the firm’s lawyers and non-lawyers comply with the rules (MR:) by instituting reasonable polices and procedures. A lawyer with supervisory authority over lawyers or non-lawyer employees or agents must make reasonable efforts to ensure compliance with the rules. If the lawyer knows of misconduct at a time when its consequences can be avoided or mitigated, then that lawyer may be subject to discipline for failing to take reasonable remedial action. A subordinate lawyer is bound by the rules notwithstanding directives. EXCEPT, a subordinate lawyer will not be subject to discipline if he obeys a supervisor’s reasonable resolution to an arguable question of professional duty. |
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Duty when offering law-related services |
If lawyer provides ancillary services along with legal services to the same client, the rules of professional conduct govern all transactions with the client. (include things like financial planning, social work, etc) MR: rule applies unless the law-related services are distinct and the lawyer has taken reasonable steps to ensure the recipient knows the protections of the lawyer-client relationship do not apply. |
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Duty regarding non-compete |
lawyer cannot enter into agreements that restrict lawyer’s right to practice law after termination. Cannot offer or enter a settlement agreement that restricts lawyer’s right to practice. Does not apply to agreement concerning benefits upon retirement. |
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Duty regarding sale of a law practice |
Sale okay when lawyer ceases to practice in the state (MR only), sale is of all or substantially all of the practice (MR or practice area), lawyer exercises competence in finding a buyer, client fees are not increased as a result of the sale, and written notice to clients is provided. Consent of client is presumed if no objection made within 90s days |
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Association with non-lawyers |
lawyer may not form a partnership with a non lawyer if any of the partnership activities consist of the practice of law lawyer may not practice law in a professional corporation or for profit assiciation if non lawyer has any ownership interest, a position of management or the right to control the lawyer’s professional judgment. In CA, officers, directors, and shareholders of a California law corporation rendering legal services must be active members of the State Bar. |
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Duty of Diligence |
Model Rules Lawyer must act with the reasonable diligence and promptness in representing a client. This means that the lawyer must be dedicated and committed to the interests of the client, must controll her workload, must act with reasonable promptness (but does not prohibit attorney from agreeing to a postponement that will not prejudice his client), must pursue matter to completion, and, for a solo practitioner, must take steps to ensure that another competent lawyer can step in if lawyer dies or becomes disabled. |
