Professional Responsibility - Bar Mind

Front 1

1. The BAR Essay
a. Tip –

Back 1

"The lawyer has a duty of __________ to __________.

i. Outline every major duty to each individual client with headlines.

ii. Then look for conflicting duties to other clients/entities

Front 2

1. The BAR Essay
b. Duties to the CLIENT (Clients Love Fierce Counsel; Courts Feel Differently)

Back 2

i. Confidentiality
ii. Loyalty
iii. Financial Responsibilities
iv. Competence

Front 3

1. The BAR Essay
c. Duties to OTHERS (i.e. Third party, Public. Profession, Court. Tribunal, Adversaries)

Back 3

i. Candor/Truthfulness – to the Court / Tribunal
ii. Fairness – to Adversaries
iii. Dignity/Decorum – to the Profession

Front 4

2. DUTY OF CONFIDENTIALITY

Back 4

a. Rule – You can't reveal anything related to the representation of a client without consent

b. Scope – Applies regardless of whether the client requested it be kept confidential or whether its revelation might harm or embarrass the client

c. Timing – Duty can attach before a lawyer/client relationship is formed, even if none was formed.
i. Ex – Asking a question on an Attorney’s Website. No duty with Internet disclaimer.

d. Source – Source of information does not matter, can be client, agent or third party.

e. Subject – Confidentiality is broad and includes ALL disclosures that could reasonably lead to discovery

Front 5

2. DUTY OF CONFIDENTIALITY
f. Compare to attorney-client privilege

Back 5

i. Source – A/C source is narrow and allows a client and his lawyer to refuse to testify about confidential communications between them or their agents.

ii. Subject – A/C subject is narrow and only pertains to legal services, not subjects like business tactics or political consequences.

Front 6

2. DUTY OF CONFIDENTIALITY
g. Exceptions
i. Consent

Back 6

if client consents after consultation.
1. Implied Consent – To further rendering of legal services.

Front 7

2. DUTY OF CONFIDENTIALITY
g. Exceptions
ii. Death or Substantial Bodily Harm

Back 7

May reveal what he reasonably believes is necessary to prevent a crime likely to result in reasonably certain death or substantial bodily harm
1. *CA – must first, if reasonable under the circumstances, make a good faith effort to persuade the client not to commit the act and inform the client of your decision to reveal the confidence.

Front 8

2. DUTY OF CONFIDENTIALITY
g. Exceptions
iii. Fraud or financial crimes

Back 8

May reveal if the client used or is using your services to commit the crime and the disclosure would prevent or mitigate substantial financial loss.
1. CA – NO financial exception to confidentiality

Front 9

2. DUTY OF CONFIDENTIALITY
g. Exceptions
iv. Defense

Back 9

May reveal information necessary to establish claims and defenses when being sued for malpractice, defending a disciplinary action, or a client refuses to pay

Front 10

2. DUTY OF CONFIDENTIALITY
g. Exceptions
v. Compelled

Back 10

– If compelled by law, final court order, or other controlling ethical duties

Front 11

3. DUTY OF LOYALTY (Conflicts of Interest)
a. Rule

Back 11

You have a duty of loyalty to your client. 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.

i. Discuss actual and potential conflicts.

ii. If conflicts emerge after representation begins, (1) disclose and (2) get further consent.

Front 12

3. DUTY OF LOYALTY (Conflicts of Interest)
b. You must NOT take on the representation UNLESS

Back 12

i. Reasonably BELIEVE that you can represent everyone effectively despite a potential conflict. (ABA – Objective Standard)
1. ABA requires that you reasonably believe you can represent everyone effectively

ii. You INFORM each affected client
1. If the duty of confidentiality prevent full disclosure needed for the client to understand, then consent may not be possible, AND

iii. The client CONSENTS confirmed in writing

Front 13

3. DUTY OF LOYALTY (Conflicts of Interest)
c. Imputed Disqualification

Back 13

i. All members of the firm share conflicts, including any group of lawyers that work closely or share responsibilities
1. *CA – follows the rules for disqualification, but does NOT subject a lawyer to discipline for imputed conflicts under its ethical rules

Front 14

3. DUTY OF LOYALTY (Conflicts of Interest)
c. Imputed Disqualification
ii. Exceptions

Back 14

1. Previous government service

2. Purely personal relationship conflict that would not affect the ability of other firm members

3. When the lawyers work for adverse parties was at a previous firm

4. May use an "ethical wall" or screen to reasonably block off any contact on the matter between the lawyer with the conflict and the others.

Front 15

3. DUTY OF LOYALTY (Conflicts of Interest)
c. Imputed Disqualification
iii. Remedies

Back 15

1. Refuse to take the case

2. Advise multiple clients to attain separate counsel

3. Withdraw

Front 16

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
i. Business Transactions or Adverse Interests

Back 16

May enter into business with a client or obtain an adverse interest only if: (“First Discuss Over Coffee”)

1. Terms are Fair and Reasonable to the client under the circumstances Known to the Lawyer when the interest was acquired,

2. Fully Disclose in an understandable writing

3. Client has an Opportunity to Consult outside counsel

4. Client provides Written Consent

Front 17

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
ii. Transactions

Back 17

1. May accept shares of stock for reasonable services, must follow above rules

2. Be cautious if the investment is by an individual firm member or if the acquisition represents one of the firm's major assets

Front 18

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
iii. Board Service

Back 18

1. Strongly discouraged bc likely to compromise duties of loyalty and confidentiality

2. May also place in conflict duties as fiduciary to the board

3. Exception – May serve as a director, officer or member of a legal services organization that is not your employer as long as you do not knowingly participate in a decision or action of the organization adverse to your clients

Front 19

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
iv. Publication Rights (CA Publication rights ok)

Back 19

1. ABA – Cannot negotiate or accept publication rights prior to end of representation.

2. CA – Case law discourages before the end of proceedings, but tolerates them if the judge is satisfied that the client (1) clearly understands and (2) consents

Front 20

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
v. Limiting Liability

Back 20

1. You cannot proscriptively limit your client's right to report you for ethical or other professional violations

2. You cannot limit your malpractice liability when you enter into a relationship with your client
a. ABA allows limits if the client is independently represented in the agreement
b. May settle a malpractice claim only after giving written advice to client to consult independent counsel

Front 21

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
vi. Loans and Advances to client (CA Allows loans in writing)

Back 21

1. ABA – NO financial assistance, except for costs and litigation expenses when representing an indigent, and the advance of litigation expenses in contingent fee cases

2. CA – prohibits the promise of paying a prospective client's debts, but allows loans in all matters (including non-litigation) for ANY purpose after the lawyer is hired, as long as there is a written IOU.

Front 22

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
vii. Use of Information

Back 22

Use or Communication of information relating to the representation of a client to her disadvantage and without consent violates the duties of both loyalty and confidentiality

Front 23

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
viii. Gifts

Back 23

Must NOT (1) solicit a substantial gift from a client, or (2) draft a legal instrument for a client (3) who is not your close relative if it provides a (4) substantial gift to you or your relative.

Front 24

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
ix. Close Relationship with Adverse Counsel

Back 24

Cannot oppose a party represented by a relative without informed client consent

1. Close relations – immediate family (parent, child, sibling, spouse) and other intimates
a. *CA explicitly recognizes other intimates (shackmates)

2. Not Imputed – This conflict is NOT imputed to other firm members

Front 25

3. DUTY OF LOYALTY (Conflicts of Interest)
d. Conflicts between Lawyer and Client
x. Trial counsel as a necessary witness

Back 25

1. CA – prohibits attorneys from testifying in jury trials unless the client consent in writing.

2. ABA – CANNOT serve as counsel and witness in the same trial unless:
a. Your appearance as a witness will NOT prejudice the client, AND
i. Your testimony is uncontested or regarding the nature and value of services rendered, OR
ii. Your distinctive value to the case means withdrawal would impose substantial hardship on the client

Front 26

e. Conflicts Between Clients
i. Rule

Back 26

MAY represent clients with potential conflicts with the proper consent of ALL, but almost never proper if their interests are in actual conflict
1. Bar Tip – Ask about all the duties owed to each individual client separately; watch for breach of duty of confidentiality

Front 27

e. Conflicts Between Clients
ii. Opposite Sides of the Same Matter

Back 27

If the parties are in direct conflict it is unreasonable to represent both clients either personally or imputed through law firm.

Front 28

e. Conflicts Between Clients
iii. Conflict with Present Client's Interests

Back 28

1. ABA – does NOT prohibit, but it is rarely reasonable

2. CA – prohibits from taking a case adverse to a client’s interests you are currently representing, regardless of the relationship of the cases.

3. CA Statutory Exception – By statute the prohibition does NOT extend to representing a policy holder and his insurance company as joint clients, where the insurer's only interest in each matter is as an indemnity provider.

Front 29

e. Conflicts Between Clients
iv. Two clients with inconsistent positions

Back 29

MAY represent both with consent, but if either party would be disadvantaged you MUST withdraw

Front 30

e. Conflicts Between Clients
v. Multiple clients in the same matter

Back 30

1. Rule – May represent if there is a Potential conflict if there is acceptable and reasonable consent.
a. If a Direct conflict develops:
i. Withdraw and Advise – may be best to withdraw from both and advise to attain separate counsel.
ii. MUST at least withdraw from one, especially if confidential adverse information about one party has been attained
b. In Criminal Matters, dual representation may not only compromise duty of loyalty, but also impede the Sixth Amendment's guarantee of "effective assistance of counsel"

2. Examples: Insured and insurance company; Corporation and its directors, officers, employees, or shareholders; Both spouses in a divorce or will

Front 31

e. Conflicts Between Clients
vi. New Client in matters Related to Former Client

Back 31

– If confidential information from another client might be relevant to work on a new client's matter, you may be violating the continuing duty of confidentiality as well as the duty of loyalty to the former client.

1. New Client– Cannot take on a new client with interests materially adverse to a former client without the former's consent. (Imputed or personal)

2. Use – Use of non-public confidential information against a former client is unreasonable

3. Imputed Disqualification – Imputed disqualification applies to the firm if:
a. The matters are substantially related or the same, AND
b. Any remaining lawyer has confidential material information.

4. Bar Tip – Ask if the representations overlap in function, scope or information?

Front 32

e. Conflicts Between Clients
vii. Former government lawyer now in private practice

Back 32

1. ABA – if government lawyer worked "personally and substantially" on a "matter", (specific dispute between specific people over a specific issue) then it would be a conflict to work on the same matter later in private practice
a. Consent – May attain consent in writing from government employer.
b. *May draft regulations and later sue on them because they are not matters.

2. CA – explicitly bars prosecutors from later working on the defense of the same case; however case law allows screening of government lawyers

3. Imputed disqualification – Other firm's lawyers may represent client if:
a. Former government lawyer is screened
b. Does NOT share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); AND
c. Government employer is informed

4. Judicial officers besides attorneys – Same rules apply to judges, clerks, arbitrators.

Front 33

e. Conflicts Between Clients
viii. Conflicts from a lawyer’s past private sector work

Back 33

1. These do not extend to members of her private firm if:
a. Lawyer is timely and effectively screened, and receives no direct part of the fee, AND
b. Former client receives notice and periodic certifications of compliance with these conditions.

Front 34

f. Conflicts due to Third Party Interference

Back 34

i. Rule – Your sole duty is to your client and NOT to any third party

ii. Compensation – Compensation for services from a third party is permitted only with informed client consent. (Note – Your client is the one you are representing)

iii. Organizational clients – A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
1. SARBOX – If an Attorney discovers violations of securities laws he:
a. First, MUST report the matter to the CEO or Chief Legal Counsel.
b. If they do NOT respond, MUST go to the Board or highest authority in the company
c. If lawyer reasonably believes necessary to prevent fraud or substantial injury to the organization or investors, or if his services were used, he may disclose confidential information to the SEC without client consent.

2. ABA – mandates "reporting up" and permits limited "reporting out"

3. CA – permits "reporting up" and prohibits "reporting out"; however, due to federal preemption, CA lawyer cannot be disciplined for complying w/federal law

Front 35

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
i. Non-contingent Fee Cases – Required (ABA and CA)

Back 35

1. How fee calculated

2. What services included

3. Lawyer and client's duties

4. CA adds – Must be in writing unless:
a. Fee is under $1000
b. Corporate client
c. Routine services for regular client
d. Emergency or Impractical

Front 36

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
1. Requirements

Back 36

a. Written fee agreement

b. Signed by client

c. Lawyer's fee percentage

d. Deductible expenses

e. Fee taken before or after expenses

f. CA adds:
i. How work NOT covered by contingent fee will be paid
ii. Statement that lawyer's fees are negotiable

Front 37

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
2. Types of actions allowed

Back 37

a. ABA – cannot be used in domestic relations (Divorce) or criminal cases

b. *CA – silent on criminal cases and allows contingent fee divorces are allowed "provided the fee arrangement will not encourage the breakup of an otherwise savable marriage"

Front 38

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
3. Termination before judgment awarded

Back 38

a. Quasi Contract – If the attorney is fired before judgment, if the client wins, the attorney can recover reasonable fees in proportion to the work performed (Unjust Enrichment)

b. Note – CA allows charging liens to guarantee collection from an award to be written into contingency agreements, but not in hourly fee agreements

Front 39

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
4. Fees too high?

Back 39

a. CA – Fees must NOT be unconscionably high

b. ABA – Fees must be reasonable, taking into account the totality of the circumstances. (i.e. good faith valuation)
i. i.e. labor, novelty, difficulty, skill and timing required, result obtained, experience of and other demands on the attorney, fee arrangements, etc. penalties and forfeitures are not enforceable

Front 40

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
5. Arbitration

Back 40

a. CA – must submit to arbitration to settle fee disputes if the client desires.

b. ABA – encourages arbitration.

Front 41

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
6. Fee Splitting

Back 41

a. Inside – May split fees with other lawyers in the firm

b. Outside – (CA & ABA) May split fees with lawyer outside the firm, only if the total fee is (1) ethical and there is (2) written disclosure and (3) consent
i. ABA – further requires that the division be in proportion to the work done by each attorney, unless each is jointly responsible for the action

Front 42

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
7. Fee splitting with non-lawyers – generally NOT allowed
a. Exceptions

Back 42

i. Death benefits paid for a reasonable time to a deceased lawyer's firm or heirs for his work

ii. Fees passed on as pension and salaries for non-lawyer employees

iii. May share court-awarded legal fees with a non-profit organization that employed or recommended the lawyer

iv. May pay usual charges of a qualified lawyer referral service

Front 43

4. FINANCIAL DUTIES TO A CLIENT
a. Attorney Fees
ii. Contingent Fee Cases
8. Partnership with non-lawyers

Back 43

a. Rule – Prohibited if the partnerships purpose is providing legal services
i. Non-lawyers cannot be partners, shareholders, officers, or control/direct a lawyer's professional judgment

b. Reciprocal Referral Arrangements – May enter a reciprocal referral arrangement with a non-lawyer professional or another lawyer, provided it is not exclusive and you explain the arrangement to the client at the time of the referral

c. Note – If a lawyer is also a professional in another area and provides other law related services, she is still subject to the ethics rules

Front 44

4. FINANCIAL DUTIES TO A CLIENT
b. Client Trust Accounts

Back 44

i. Duty to safeguard client's property – Must label and store it in a safe place

Front 45

4. FINANCIAL DUTIES TO A CLIENT
b. Client Trust Accounts
ii. Client Trust Account

Back 45

– Money held for the client must be placed in a client trust account

1. Includes money received on his behalf, advances for costs, expenses and fees

2. NO BORROWING or COMMINGLING of funds

3. Interest belongs to the client in an interest bearing trust account,

4. Smaller funds held for a short period of time for several clients can be deposited into a "pooled client trust account."
a. Must be a checking account
b. IOLTA account – the interest pays the bank service charges first, and the remainder goes to the State Bar to fund legal services

5. Disputed claim for fees or lawful claim over the client's funds or property in custody, the lawyer MUST withhold the disputed portion in the client trust account until resolution

Front 46

4. FINANCIAL DUTIES TO A CLIENT
b. Client Trust Accounts
iii. Duty to keep good records for the client

Back 46

1. Must render accountings

2. Notify of money received on his behalf

3. Pay promptly money due

4. CA – Must keep records of client property for Five (5) years after final distribution and make the records available to the State Bar for audit

Front 47

5. COMPETENCE
a. Duty of Competence – (SKTP)

Back 47

Duty to use the legal skill, knowledge, thoroughness, and preparation reasonably necessary for the representation.

Front 48

5. COMPETENCE
a. Duty of Competence – (SKTP)
i. Liability

Back 48

1. Discipline by the Bar
2. Disqualification in a litigated matter
3. Civil Malpractice liability

Front 49

5. COMPETENCE
a. Duty of Competence – (SKTP)
ii. Unfamiliar

Back 49

– If unfamiliar with the relevant law, a lawyer cannot take on the matter unless, he can put in the time to learn it without undue expense or delay to the client or he associates with a lawyer competent in the area.

Front 50

5. COMPETENCE
a. Duty of Competence – (SKTP)
iii. Distinguish from Malpractice

Back 50

A malpractice P must prove a legal claim. In simple negligence cases, the P must show a breach of the duty of care (skill, care, and judgment that a reasonably prudent lawyer in the region would have used in the circumstances)

1. An ethical violation may be relevant evidence of malpractice, it does not create a presumption of it.

Front 51

5. COMPETENCE
b. Duty of Diligence

Back 51

Must diligently, promptly, and reasonably pursue the case to completion

Front 52

5. COMPETENCE
c. Duty to Communicate

Back 52

– Duty to keep the client informed about the case, including settlement offers and phone calls/emails.

i. A settlement offer to joint clients must be conveyed to ALL and an agreement as to the division of the settlement must be made prior to accepting

Front 53

5. COMPETENCE
d. Accepting Representation

Back 53

i. Free to accept or reject any case

ii. Should accept as part of the duty to the public and profession
1. Case of the defenseless or oppressed
2. Fair share of work without charge

iii. MUST reject a case if
1. Would violate a law or ethical rule to take it
2. Not in physical or mental shape to take (duty of competence)
3. Frivolous legal argument (duty of candor)

Front 54

5. COMPETENCE
e. Scope of Representation

Back 54

i. Client makes decisions about her substantive rights
1. Testify in criminal case (Lawyer must inform of the
2. Accepting plea bargain
3. Accepting settlement offer

ii. Lawyer decides procedure and legal strategy
1. i.e. Choice of motions or Discovery decisions
a. Note – If client and lawyer disagree, limit the scope with client consent

iii. Criminal Conduct – Scope does NOT include assisting a client in conduct that is criminal or advising the client on how to act illegally and succeed

Front 55

5. COMPETENCE
f. Duty of Withdrawal
i. Three ways to leave a case prior to resolution

Back 55

1. Client fires the Attorney

2. Mandatory Withdrawal – Continuing the case would violate an ethical rule or law, lawyer’s physical or mental condition materially impairs ability to represent client, or if lawyer is discharged.
a. CA Adds – If the lawyer knows that the client is acting without probable cause and to harass or maliciously injure another person.

3. Permissive Withdrawal – May withdraw if you convince the court there is "good cause" and the withdrawal will not cause undue delay or disruption
a. Recognized causes:
i. Failure of client to pay
ii. Client's illegal activity
iii. Objective that is "repugnant or imprudent"
iv. ABA adds:
1. Lawyer's financial burden or
2. Client used lawyer's services to commit past crime or fraud

Front 56

5. COMPETENCE
f. Duty of Withdrawal
ii. Procedure for withdrawal

Back 56

1. Provide timely notice to the client AND

2. Must promptly return:
a. Any unspent fee and expense advances
b. Material papers and property of client
i. Include everything needed to pursue the case, including work product even if the client has not paid.
c. CA – forbids withholding materials for money

Front 57

5. COMPETENCE
g. Other Duties

Back 57

(BE SENSIBLE AND REASONABLE)
i. Sexual Relations with Client – Cannot engage in consensual sex with a client unless there was a preexisting sexual relationship.

ii. CA also allows spouses and even new relations (with cautions)

Front 58

6. DUTY of CANDOR to the PUBLIC & DIGNITY of the PROFESSION
a. BAR Tip

Back 58

a. BAR Tip – ID duties that run to multiple parties, and give each a separate heading ! E.g. – advertising may breach duty of candor to public and duty to preserve the dignity of the profession

Front 59

6. DUTY of CANDOR to the PUBLIC & DIGNITY of the PROFESSION
b. Commercial Speech

Back 59

State can regulate attorney advertising and solicitation subject to the First Amendment Commercial Speech doctrine:

i. Not False, Misleading, or Unlawful,

ii. Government assert a Substantial Interest,

iii. Regulation Directly Advances that interest in a material way,

iv. Reasonable Fit – No more extensive than necessary to serve that interest.

Front 60

6. DUTY of CANDOR to the PUBLIC & DIGNITY of the PROFESSION
c. Advertising

Back 60

Must not be false, misleading, or unlawful

i. Misleading – Do not mislead or omit material information

ii. False – Do not raise unjustified expectations or make unverifiable comparisons
1. CA – Presumes improper any ad that contains guarantees, warranties, or predictions of a result. No testimonials or endorsements may be used unless there is an express disclaimer that they are not a guarantee, warranty, or prediction.

iii. Claims of Legal Specialties
1. Field – Can state the attorney’s fields of practice
2. Specialty – May not advertise specialization unless "certified specialist"
a. CA – Board of Legal Specialization requires – (4 E’s) Experience, an Examination, Education, and Evaluations
b. ABA – Certification by approved organizations and require the certifying organization be identified in communications

iv. Harassment – Advertising must not harass or solicit someone who has indicated they want to be left alone
1. Targeted direct mail is OK, but must be labeled as "Advertising Material"

v. Label – Every ad must be labeled as advertising and if applicable, "a dramatization" or "impersonation"
1. It must identify at least one lawyer responsible for its contents
2. Must keep records of the content and placement of any ad for 2 years
3. CA – CA adds additional specific actions presumed to be advertising violations (shift BOP to the accused lawyer)

Front 61

6. DUTY of CANDOR to the PUBLIC & DIGNITY of the PROFESSION
d. Solicitation

Back 61

Do not seek (1) professional employment for pecuniary gain by (2) initiating live or telephonic contact with a prospective client with whom you have (3) NO prior professional, personal, or family relationship

i. CA – allows internet communication (IM, chat rooms, etc)

ii. ABA – extends telephonic coverage to ALL real time electronic contact

iii. Presumption – CA – Presumes that communications made at the scene of an accident or en route to a medical facility are improper

iv. Agents – Runners and cappers (agents) cannot do anything that a lawyer cannot do.

Front 62

7. Duty of CANDOR to the COURT & FAIRNESS to your ADVERSARY

Back 62

A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation,

a. Override – Duty overrides conflicting duties of Confidentiality and Loyalty

Front 63

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
a. Duty to Present Facts & Evidence Truthfully: Duty NOT to:

Back 63

i. Make a false statement of material fact, or

ii. Offer evidence that you know is false to a tribunal, or

iii. Fail to correct a false statement of material fact or law that you previously made or presented to the tribunal

Front 64

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
b. Duty to prevent Client perjury

Back 64

– must NOT knowingly facilitate client perjury

i. Civil – must refuse to call the client as a witness if you know he intends to perjure himself

ii. Criminal – because of 5th Amendment right to testify and 6th Amendment right to effective counsel, MUST call to stand; however, the Attorney

MUST:

1. Counsel client to testify truthfully or NOT take the stand

2. Try to withdraw from the case
a. CA – Allow the D to testify in narrative fashion, but do NOT further the deception (no questions, do not use in argument)
b. ABA – Tell the judge. Right to counsel and duty of confidentiality do not protect perjury.

iii. After Trial – If client tells you after the proceedings that he lied, you must take reasonable remedial measures, but your duties end with the proceedings (after time for appeal has run)

iv. Witnesses – Must NOT counsel or assist a witness to testify falsely or to become "unavailable"
1. Payment – Unless prohibited by local law, may pay basic expenses of a witness or reasonable fees for expert, as long as the payment is NOT contingent on the content of the testimony.

Front 65

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
c. Duty to Produce Evidence

Back 65

Must NOT suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty.

i. Must not obstruct access to or tamper with fruits or instrumentalities of a crime

ii. **Distinguish between the Duty to produce physical evidence and confidential communications.
1. Ex. D comes to your office with cocaine. He says that he's been selling drugs and needs legal help.
a. Duty –Must deliver drugs to authorities but may NOT disclose communications.

Front 66

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
c. Duty to Produce Evidence
iii. Interference with Evidence

Back 66

Duty not to interfere with evidence

1. Look at Evidence – If D tells you where he hid gun you may look at the evidence but you may not interfere (move or alter) the evidence.

2. If Evidence is Interfered with the Attorney May be:
a. Compelled to produce it
b. Compelled to testify where it was found
i. Cannot reveal source of information about the location if confidential

3. Prepare Case– May retain evidence for a reasonable time to prepare case, including conducting tests, so long as they will NOT alter or destroy the evidence

Front 67

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
c. Duty to Produce Evidence
iv. Prosecutors Duty to Disclose

Back 67

Prosecutors have a special duty to timely disclose evidence favorable to the defense

Front 68

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
c. Duty to Produce Evidence
v. Volunteering information

Back 68

Your ethical duties of candor to the court and fairness to your adversary require that you reveal ALL relevant information, overriding the normal presumption that you may NOT reveal facts harmful to your client's case.

Front 69

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
d. Duty to State the Law Truthfully

Back 69

Knowingly making a false statement of law to the court is subject to discipline.

i. Obligation to be candid about the law including a duty to cite adverse authority, if it's from a controlling jurisdiction and directly on point.

ii. Presenting frivolous claims or defenses is unethical and subject to discipline

Front 70

8. Duty to PRESENT FACTS & EVIDENCE TRUTHFULLY
e. Duty to Uphold the Law

Back 70

Preventing your client from committing a crime reasonably likely to result in death or serious bodily injury. Under both ABA and CA rules, such disclosure is permissive. Note – ABA does not require a criminal act

i. Preventing or rectifying crimes causing substantial financial loss
1. CA – forbids you from revealing confidences to prevent financial crimes
2. ABA – permits disclosure if your services were employed in the crime

ii. Continued Representation – If continued representation would require you to commit or assist in committing a crime, you MUST withdraw.
1. If the client persists in actions that you reasonably believe are criminal or fraudulent, but you are NOT assisting in a crime, you MAY withdraw

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9. Duty of FAIRNESS

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The lawyer has a duty to behave honestly in ALL dealings, whether or not engaged in the practice of law. When there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession

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9. Duty of FAIRNESS
a. Dealing fairly with others

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Communication with adversaries and third parties

i. You must NOT lie to people or mislead them as to your interests

ii. You must NOT violate the legal rights of a person in order to obtain evidence or use means with NO purpose but to delay, burden, or embarrass them

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9. Duty of FAIRNESS
b. Communication with a Party Represented by Counsel

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Unless authorized by law, you must NOT communicate with a party you know is represented by counsel on the subject matter of the case without consent of his counsel

i. ABA extends this to ALL "persons" represented by counsel

ii. CA – Consent is required for interviews of an officer, director or managing agent of a company/corporation. The prohibition extends to ANY current employee whose communication might bind or be imputed to the organization or constitute an admission

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9. Duty of FAIRNESS
c. Dealing with the Press

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i. Access to a Trial – D's right to a fair trial is balanced against the press and public's right to know.

ii. Statements – A lawyer and his agents must avoid out of court statements that he reasonably should know have a substantial likelihood of materially prejudicing the case
1. Exceptions
a. Matters of public record or routine booking information
b. Warning the public
c. Informing the public of an ongoing investigation or asking for help
d. Statements required to protect your client from substantial undue prejudice from recent publicity (not self-initiated)

iii. Prosecutors – Prosecutors and their associates must not make comments that have a substantial likelihood of heightening public condemnation of the accused

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9. Duty of FAIRNESS
d. Special duties of Prosecutors

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Basic duty is to seek justice, not just win cases. Prosecutors have higher ethical obligations than criminal defense or civil attorneys. Among other duties, such as providing exculpatory evidence, they must have probable cause.

i. Need probable cause

ii. Ensure that accused has been advised of right to counsel,

iii. Timely disclosure of evidence

iv. Refrain from making extrajudicial statements

v. Use reasonable care to prevent persons associated with the case from making an extrajudicial statement

vi. Subpoena a lawyer in a criminal proceeding to present evidence

vii. Seek to remedy a conviction if there is clear and convincing evidence convicted defendant did not commit the crime

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10. PRESERVING the DIGNITY of the COURT
a. Duty to Preserve the Impartiality and Decorum of the Tribunal

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i. Do not try to influence anyone improperly

ii. Before and during trial must not talk to any prospective or empanelled juror
1. After trial, if the law permits, may interview jurors as long as you do not harass or influence their future jury service

iii. No "chicanery" – referring to inadmissible material, alluding to matters unsupported by evidence, asserting personal knowledge of the facts at issue

iv. Preserve decorum of the tribunal
1. Refrain from abusive or obstreperous conduct, belligerence, or theatrics
2. A lawyer may stand firm against abuse by a judge but should avoid reciprocation

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10. PRESERVING the DIGNITY of the COURT
b. Duty to Expedite Cases

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i. CA – must not delay cases to harass an adversary or for your own personal gain or convenience

ii. ABA – affirmative duty to expedite cases

iii. Duty to follow valid procedural rules or court orders, unless you make a good faith challenge to their validity

iv. Must NOT abuse or obstruct discovery

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10. PRESERVING the DIGNITY of the COURT
c. Additional duties to the PROFESSION and PUBLIC
i. Duty not to engage in the Unauthorized Practice of Law

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A lawyer must not engage in the unauthorized (or Unlicensed / Suspended) practice of law to safeguard the public from incompetence

1. May not practice in a state in which NOT Admitted unless,
a. (1) allowed by law, (2) "pro hac vice"

2. CA – adopted rules governing Out-of-State Lawyers
a. In the categories
i. Registered legal services attorneys

ii. Registered in-house counsel for an institution (but no individual representation or court appearances)

iii. Litigating attorneys practicing temporarily in the state

iv. Non-litigating attorneys practicing temporarily in the state
b. Rules require lawyer to
i. Register with CA Bar
ii. Pay Dues
iii. Satisfy continuing legal education requirements
iv. Be subject to CA ethics rules
3. ABA –allows temporary practice by an out-of-state lawyer in good standing if:
a. The Lawyer Associates with a Locally Admitted lawyer who actively participates in the matter.
b. The services relate to Alternative Dispute Resolution.
c. The matter arises out of matters reasonably related to the lawyer's practice in a state where she is admitted, AND are NOT services where the forum requires a pro hac vice appearance

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10. PRESERVING the DIGNITY of the COURT
c. Additional duties to the PROFESSION and PUBLIC
ii. Reporting Misconduct

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1. ABA rules require a lawyer to report any other lawyer's violation of the rules in a legal or non-legal context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge

2. CA requires self-reporting of lawyers being charged with a felony or certain crimes, found civilly liable for fraud or breach of fiduciary duty, disciplined in another jurisdiction, or under certain conditions, sued for malpractice or sanctioned.
a. In addition, in CA you can be disciplined for merely knowing about a fellow firm member’s disciplinary violation but doing nothing to prevent it. (i.e. counseling the lawyer, or telling a supervisor)

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10. PRESERVING the DIGNITY of the COURT
c. Additional duties to the PROFESSION and PUBLIC
iii. Duties of Subordinate Lawyers

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1. Subordinates
a. Clear violation – subordinate is subject to discipline for taking action, even if a senior partner orders or ratifies.
b. Debatable violation – partner is solely responsible

2. Managing Partners
a. Duty – Must make reasonable efforts to ensure all employees conduct (including non-lawyer assistants) comports with the professional obligations of a lawyer including non-lawyer assistants.
b. Ratification – If the managing partner knew of the conduct and failed to take action it is a violation.

3. Lawyer Inaction – CA – can be disciplined for merely knowing about a fellow firm member's disciplinary violation and doing nothing to prevent it.