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45 Cards in this Set
- Front
- Back
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UNAUTHORIZED PRACTICE OF LAW
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ABA and CA prohibit unauthorized practice of law as well as assiting another in the UPL. It's also a misdemeanor in California..
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UNAUTHORIZED PRACTICE OF LAW
How to determine if it is UPL |
Practicing law involves using professional judgment to apply law to factual situations.
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SOLICITATION
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A lawyer may not solicit employment in person or by a live phone contact, where a significant motive, is pecuniary gain, unless there is a prior relationship.
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SOLICITATION -- CA
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A lawyer shall not solicit employment in person or by phone (doesn't say 'live' phone call) if a significant motive is pecuniary gain. Lawyer also must not solicit anyone known to be already represented by counsel.
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ADVERTISING -- BASIC RULE
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A lawyer is subject to discipline for any kind of communication about the lawyer or his services that is false or misleading. A statement is false or misleading if it contains a material misrepresentation of law or fact or 2) it omits infomration that is necessary to make the communication as a whole not be misleading
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ADVERTISING -- ABA
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Advertisements must not
1. include false or misleading statements 2. create unjustified expectations 3. use illegal or unethical means 4. sling mud against other lawyers |
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AMBULANCE CHASING
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Not permitted under CA rules. Lawyers cannot compensate runners or offer rewards for referrals. Gifs are OK only if not in consideration for any promise of referrals. A pattern of "gifts" might be seen as compensation.
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ADVERTISING -- ADDITIONAL CALIFORNIA PROHIBITIONS
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Must not make a communication that contains
1. a guarantee or warranty of the outcome of case 2. words or symbols that suggest quick cash or a quick settlemetn 3. impersonation of a lawyer or client without disclosing it is an impersonation 4. a dramatization of an event without disclosure it is a dramatization 5. a contingent fee offer that does not warn that a losing client might have to pay litigation costs if that is the arrangement Also, written advertisements must be labelled in at least 12 pt, and all ads must be kept for two years. |
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PERMISSIBLE REFERRAL FEE -- ABA
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Referral fees are prohibited but a lawyer may ethically divide fees with an outside lawyer if the division is proportional to each lawyer's services or each lawyer assumes joni responsibility for the representation. The fee split must be in writing, state each lawyer's share, and be signed by the client, Total fee must be reasonable.
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PERMISSIBLE REFERRAL FEE -- CA
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A lawyer may pay a referral fee to an outside lawyer who referred a case if the client knows all the terms and consents in writing, the total fee is not unconscionable and not increased because of the referral.
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REASONABLE FEES
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ABA says fee must be reasonable (CA says "not unconscionable") based on factors such as
1. time, labor and skill required to do the work 2. customary fee in the locality for similar work 3. amount involved and result obtained 4. experience, ability and reputation of the attorney |
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FEE SCHEDULES SET BY BAR ASSOCIATION
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Minimum fee schedules violate antitrust laws, and a maximum fee schedule might also do so. Statues, court rules and court decisions have imposed maximum fees for certain kind of work in some jurisdictions.
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DUTY TO AVOID FEE MISUNDERSTANDINGS -- ABA
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If a lawyer has not regularly represented a client, the fee must be communicated, preferably in writing, to the client before or within a reasonable time of beginning work.
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DUTY TO AVOID FEE MISUNDERSTANDINGS -- CA
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If fees exceed $1,000, California requires a written fee agreement except when
1. client is a corporation 2. legal services are the same kind the clietn has previously received and paid for 3. client states in writing that the client doesn't want a written fee agreement 4. lawyer acted in an emergency to protect client's rights or 5. writing is impractical for other reasons |
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CONTINGENT FEES
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Contingent fee must be ina writing signed by the client and must state the method by which fees will be determined. ABA prohibits contingent fees in domestic relations and criminal cases (CA RPC is silent on this point).
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DUTY OF LOYALTY
Avoiding conflicts of interest |
A lawyer owes a duty of loyalty to his clients. This duty entails avoiding representation which includes a potential or actual conflict.
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DUTY OF LOYALTY
Actual and potential conflicts |
An actual conflict exists when
1. representation of a client will be directly adverse to the interests of another client; 2. there is a significant risk that the representation of a client will be materially impaired by the lawyer’s personal interests or by the interests of another client, former client, or third person. A potential conflict exists when 1. the lawyer suspects that an actual conflict may exist but his representation has not yet been materially limited. |
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DUTY OF LOYALTY
Representation despite a conflict |
Despite a concurrent conflict of interest, a lawyer may undertake a representation of a legal matter if the lawyer reasonably believes that he can competently and diligently represent each affected client, and each affected client gives informed consent. In California, consent must be in writing.
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DUTY OF CANDOR
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As an officer of the court, an attorney owes the court a duty of candor. This duty requires that the attorney do nothing to promote a fraud on the court.
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DUTY OF COMPETENCE
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The rules of professional conduct require the attorney to competently represent the client. The duty of competence requires the lawyer to possess all of the necessary skill, knowledge and necessary preparation for the representation. An attorney is not prohibited from undertaking work in a field in which he is not experienced, provided he diligently acquires the necessary competence to adequately and fairly represent the client or associates with an experienced attorney on the matter.
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DUTY OF LOYALTY
Breach by sex with a client |
Under the Model Rules, an attorney is prohibited from entering into a sexual relationship with a client. Any such relationship is a breach of the duty of loyalty. Preexisting sexual relations are permitted to continue so long as they do not materially limit the attorney’s ability to effectively represent the client.
In California, such relations are permitted, provided the attorney reasonably believes the relationship will not materially and adversely affect the client, are not for payment of attorney services, and are not the result of undue influence or duress on the part of the attorney. |
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DUTY OF CONFIDENTIALITY
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It is the duty of an attorney to maintain inviolate the confidence and, at every peril to himself, preserve the secrets of his clients.
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DUTY OF CONFIDENTIALITY
ABA exceptions |
A lawyer may reveal information if:
1. client gives informed consent 2. it's impliedly authorized to carry out the representation or 3. lawyer reasonably believes it is necessary to prevent someone's death or substantial bodily harm to that person 4. necessary to prevent the client form committing a crime or fraud that is likely to cause substantial financial loss to a person and the client is using or has used the lawyer's services 5. necessary to collect a fee or protect the lawyer 6. required by court order 7. necessary to obtain confidential legal advice about lawyer's duty to comply with ethics rules |
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DUTY OF CONFIDENTIALITY
CA Exceptions |
Lawyers promise in the Attorney's Oath to protect client secrets, which on its face has no exceptions. Case law has created exceptions for
1. disclosures compelled by law or court order 2. to collect fee 3. defend against a charge of ineffective representation by counsel |
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DUTY OF DILIGENCE
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Throughout the representation, the lawyer must
1. keep the client informed 2. responsibility supervise the case 3. zealously represent the client and 4. communicate settlement offers to the client |
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MALPRACTICE
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Malpractice is a tort that an attorney acted negligently in representing a client. The client must show
1. the attorney's conduct was 2. that the client woiuld have prevailed if the representation had been competent |
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MANDATORY WITHDRAWAL
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An attorney must withraw from representation, with the permission of the client if necessary, if
1. dismissed by the client 2. client's purpose is improper and without legal basis 3. continued represenation would violated disciplinary rules or 4. attorney's physical or mental state makes effective representation ineffective. Attorney must make reasonable efforts to protect hte client's interests. |
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PERMISSIVE WITHDRAWAL
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An attorney, with the permission of the court if necessary, may withdraw form repsentation
1. when the client approves 2. the client's claim lacks a legal basis 3. continued involvement might violete disciplinary rules 3. friction with co-counsel hampers representation 4. when attorney's physical and mental state makes representation difficult. Must make reasonable efforts to protec thte clients positoin. |
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PROSECUTOR
Special obligations |
A prosecutor
1. may not press ciminal charges without probable cause 2. must protect the accused's right to counsel and a hearing 3. provide access to exculpatory evidence and 4. prevent prejudicial statements by the police |
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ATTORNEY-CLIENT PRIVILEGE
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The atorney-client privilege allows a client to refuse to testify and prevents an atotrney from testifying in court about confidential communications between the two or their agents.
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ATTORNEY-CLIENT PRIVILEGE
Elements |
The privilege protects
1. confidential communications (not destroyed by the presence of agents of either party, such as secretary) 2. made in order to obtain legal advice 3. between the client or client-to-be and a person reasonably believed to be an attorney |
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ATTORNEY-CLIENT PRIVILEGE
Exceptions |
The privilege does not apply
1. where the client seeks the attorney's services to enable anyone to commit a future crime or fraud 2. communications relevant to a breach of duties arising from the relationsip 3. civil litigation between two persons who were formerly joint clients of the attorney 4. if the attorney can furnish evidence related to the competency or intentions of client who was making a will or giving away property 5. CA -- also does not apply if attorney believes it is reasonably necessary to prevent a cime that will result in substantial injury or death to a person |
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ATTORNEY-CLIENT PRIVILEGE
As distinguished from duty of confidentiality |
Attorney-client privilege applies only to communications made during the relationship and covers only the attorney's formal testimony. Duty of confidentiality protects from any disclosure all information related to the represetnation however and whenever derived.
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CONFLICT OF INTEREST
Imputed conficts |
If a lawyer faces a conflict of interest, no lawyer in that lawyer's firm may represent that client because the conflict is imputed to the firm.
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DUTY OF LOYALTY
Imputed conflicts of interest |
If a lawyer faces a conflict of interest, no lawyer in that lawyer's firm may handle the case because the conflict is imputed to the firm.
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DUTY OF LOYALTY
When general rule of imputed conflicts doesn't apply |
General rule of imputed conflicts doesn't apply to conflicts caused by
1. former and current government lawyers 2. a purely personal conflict of lawyer that will not inhibit the other lawyers from representing that client diligently 3. a conflict caused by a close family relationship with another lawyer who is representing a different client in the matter 4. the lawyer's sexual relationship with a client |
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CONFLICTS OF INTEREST
Ownership or financial interest adverse to a client |
A lawyer must not enter into a business transaction with a client or knowingly acquire a business interest adverse to a clietn unless
1. transaction and terms are fair and reasonable to the client 2. are fully disclosed 3. client is informed of and given a chance to have independent legal counsel onthe transaction 4. client gives informed consent in writing |
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CONFLICTS OF INTEREST
Financial assistance |
ABA -- Lawyer must not provide financial assistance to a client in connection except to
1. advance court costs 2. court and litigation expenses on behalf of an indigent client CA -- Rule si similar in regard to litigation expenses except that 1. it applies in all contexts 2. prohibits a lawyer from "buying" a client with a promise to pay all the client's debts and 3. allows a lawyer to lend money to the client if the lawyer gets a written promise of repayment |
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CONFLICTS OF INTEREST
Other prohibitions |
The lawyer may not
1. use information from the representation to the client's disadvantage 2. make a deal on media rights befor the representation ends (ABA) -- can make such a deal with client's informed consent (CA) 3. limit liability for malpractice 4. settle malpractice claim with an unrepresented client or former client |
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SCOPE OF REPRESENTATION
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The client has the ultimate authority to determine the scope of the representation, but the lawyer has the responsibility for informing the client of legal and ethical limits. When a lawyer has antipathy for the client's position or lacks time, interest or competence, he can limit the representation if the limitation is reasonable and the cliet gives informed consent.
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SCOPE OF REPRESENTATION
Decisions made by client |
These decisions must be made by the client:
1. plea in criminal case 2. waiver of jury trial in cimrinal case 3. whether to testify in criminal case 4. acceptance or rejection of settlement offer 5. what expenses can be incurred |
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SCOIPE OF REPRESENTATION
Decisions to be made by lawyer |
The lawyer decides
1. choice of motions 2. scope of discoery 3. choice of witnesses 4. direct and cross-examinations 5. what evidence to introduct |
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DUTY OF CANDOR
to the tribunal |
The lawyer may be subject to discipline for
1. knowingly make a false statement of material fact to a tribunal 2. or fail to correct a false sttement of material fact made earlier 3. fail to disclose controlling legal authority that is directly oppositiopn to the postion of the client and not offered by opposing counsel (does not have to disclose unfavorable facts) 4. offer false evidence |
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REPORTING PROFESSIONAL MISCONDUCT
ABA |
Under the ABA, a lawyer who knows that another lawyer has committed a violation that raises a substantial question about honesty or fitness of a laywer or judge must inform the appropriate professional authority.
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REPORTING PROFESSIONAL MISCONDUCT CA
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CA has no ethics rule requiring a lawyer to report another lwyer but requires self-reporting
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