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202 Cards in this Set
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2 gen classes of state bar assocs
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integrated (all attorneys must join) & vol
CA has integrated |
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Sources of fed regulation of attorneys
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1. Fed Courts--member of state bar in wh court sits
2. fed admin. agencies--member any state bar. Patent & Trademark Office requires a special exam. 3. Fed govt attorney--subj to state law |
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ABA & regulation of attorneys
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vol national org; promulgated Model Rules of Prof Conduct (RPC) wh have been adopted by MAJ of states.
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Sources of CA legal ethics rules
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CA Rules of Prof Conduct (Cal. RPC), State Bar Act, parts of CA Bus & Prof Code
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May a state require a bar applicant be a citizen of the US?
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No
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May a state require residency for bar admission?
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No, SC has held state residency requirements violate the Privs & Immunities Clause.
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Char requirements for bar admission include
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"good moral char" or "moral turpitude" test.
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What procedural protections does an applicant have if his app is denied based on moral char?
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right to a hearing before the bar committee & confrontation of adverse wits as well as judicial review
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What Con limitations are there on regulation of char of attorneys?
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must be a nexus b/n requirements for admission & applicant's fitness to practice law
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Applicant or attorney must cooperate w/ character investigations by not:
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1. knowingly make a false stmt of material fact to admission or disciplinary authority
2. fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter or 3. knowingly fail to respond to a lawful demand for info from an admission or disciplinary authority. |
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Model RPC gen rules of prof conduct prohibit an attorney from
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1. violating or assisting another to violate RPC
2. commiting a crim act wh adversely reflects on the lawyer's honesty or fitness as a lawyer 3. stating or implying ability to improperly influence a govt agency or official through unethical or illegal means 4. engaging in dishonesty, fraud, deceit or misrep 5. engaging in conduct prejudicial to the adm of justice or 6. knowingly assisting a judge to violate the applicable rules or other laws. |
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Cal. RCP's version of gen rules wh define lawyer prof misconduct add prohibitions against
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1. willingly breaching Cal. RPC or the State Bar Act.
2. knowingly assisting another to violate the rules 3. being convicted of a felony, any crime or act involving MORAL TURPITUDE, dishonesty or corruption constituting grounds for disbarment. 4. Cal.RPC also imposes obligation not to discriminate on basis of sex, race etc. |
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Lawyer discipinary process
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1, initiated by complaint to state bar, filed by any interested party.
2. examined in a preliminary screening process approved by the state bar 3. Nonpublic hearing before the grievance comm. 4. Subj lawyer retains the right to counsel, X & 5th A protection against self incrim. |
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Lawyer disciplinary process particular to CA
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In CA, State Bar Court investigates allegations of attorney misconduct & has limited authority to impose sanctions for lesser offenses. Under CA B&P Code, CA Supreme Ct has ultimate power to suspend or disbar attorneys.
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Most common forms of disciplinary sanction
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1. disbarment
2. suspension 3. pub or private censure by court or bar assoc. |
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Effect of disciplinary ac/n against an attorney in another state
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Ea state court sys sep and makes their own ind. eval but most states will give some effect to another state's determiantion.
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Effect of state disciplianry ac/n against an attorney in fed court & agencies
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Ea fed court has statutory & inherent authority to discipline members independently; so a fed court or agency not required to suspend an attorney from fed practice simply b/e he has been suspended from practice in a state court.
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What choice of law re: discipline if attorney practices in multiples states?
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Lawyer subj to discipline in ea state in wh she offers legal services or is admitted to practice. Court will apply rules of juris/n in wh court sits. Otherwise where conduct occured or where beh had primary effect.
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W/ re: unauthorized practice of law, RPC prohibit a lawyer from
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1. practicing law in a juris/n where doing so violates the reg of the legal prof
2. assisting a person who is not a member of the bar in an activity wh constitutes the unauthorized practice of law. |
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In, CA practicing law w/o being a member of the State Bar Assoc
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is a misdemeanor and subjects the person to discipline
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When professional other than attorney uses & offers information about law, is that unauthorized practice of law?
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No, there is a limited exception where special knowledge of law is required but legal professional judgment is not.
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Examples of permissible lay ac/ns include
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real estate broker/agent filing in blanks on sales K, lay tax adviser preparing tax returns, estate planner disseminating gen info on estate planning.
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Impermissible lay ac/ns wh tread on unauthorized practice of law include
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real estate broker drafting a sale K, lay tax adviser counseling inds on legal tax implications of their conduct, estate planner drafting wills or preparing estate plans for specific inds.
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Gen, with regard to multi-juris/nal practice, an attorney licenced in one state must not
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1. open a law office in another state
2. hold oneself out as practicing in the other state or 3. est a sys & continuous presence in the other state w/o 1st becoming licensed in that state. |
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In what sits may a lawyer licensed in one state provide legal services on a temporary basis in other states?
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1. assoc w/ a local lawyer who participates in case
2. consulting services w/ no court appearances nor involvement w/ opposing counsel 3 special permission for that matter only--"pro hac vice" 4. media/n or arbitra/n arising out of practice in home state 5. other temp practice arising out of practice in home state |
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Under RPC, a lawyer who is admitted in one juris/n & not disbarred nor suspended from any may est a practice in another juris/n if
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1. lawyer is a salaried employee of her only client OR
2. legal services are authorized by fed or local law. |
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In addition to other temp practice sits similar to those permitted under RPC, when may an out of state lawyer practice in CA w/out passing the bar & what requirements must the out of state attorney meet?
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As in-house counsel or legal services attorney. Must register w/ Cal St Bar, pay dues, adhere to certain ed, char & disciplinary measures. May make no court appearances nor represent inds employees, officers, SHs, etc. Out of state legal services attorney limited to 3 yrs w/o passing bar.
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Will a lawyer who is admitted to practice in one state but who practices in another state (as above), be subj to disciplinary rules of both states?
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yes
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May judges practice law?
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no
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May law students represent clients?
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no except where authorized to do so under the supervis/n of a licensed attorney
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May a lawyer share fees w/ a nonlawyer
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No, a lawyer may not practice law in assoc w/ or otherwise share fees w/ a nonlawyer
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Does rule prohibiting lawyers from practicing law w/ nonlawyers means a lawyer cannot delegate tasks to a paralegal, intern, etc.?
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No but the lawyer must supervize delegated work carefully & be ultimately responsible.
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Issue: law related or ancillary services such as financial planning or trust services
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Lawyers are permitted to provide ancillary services, but lawyer must adhere to Rules of Prof conduct w/ re to the ancillary services as well.
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May law firm be set up so that a nonlawyer owns an interest or a nonlawyer is a partner?
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no
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What is the "paramount interest" rule w/ re: to firm's priorities?
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client's problems are handled w/ competence and care
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What are 3 categories of practitioners usu. distinguished w/in a law firm?
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partners, associates & attorneys of counsel.
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In naming a lawfirm, a lawyer must not
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use a firm letterhead or name wh is false or misleading
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Issue: partnerships w/ laypersons involving legal practice
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A lawyer may not be a partner w/ a nonlawyer if any of the partnership activities consists of the practice of law.
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May a nonlawyer control a lawyer's professional judgment?
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No, a nonlawyer cannot be a partner, corporate officer nor director in a law firm
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Exceptions to no sharing of legal fees w/ nonlawyers
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1. agreement to pay $ upon lawyer's death to estate or other designated person
2. paymt of purchase price of a law practice to estate or rep of a estate or rep of deceased, disabled or disappeared lawyer 3. payment to compensation or retirement fund even tho plan funded w/ legal fees 4. sharing court awarded legal fees w/ a nonprofit org that employed or recommended employment of the lawyer in the matter. |
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Though lawyers may incorporate,
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a lawyer in a legal corp remains personally liable for her own malpractice. Also a nonlayer may not have an interest in a legal corp as a SH, officer, dir.
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May a lawyer participate in a legal services org?
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Yes but lawyer cannot knowingly participate in a decision that would be incompatible w/ lawyer's obligations to a client.
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A lawyer will be responsible for another lawyer's violation of RPC if
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1. lawyer orders or ratifies the conduct involved
2. lawyer is a partner or mgr of the law firm in wh the other lawyer practices or has direct supervisory authority over the other lawyer & knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial ac/n. 3. CA lawyer is prohibited from inducing an ethics violation. If one member of a firm commits a disciplinary violation, other members of the firm can be disciplined if they approved it or knew about it & did nothing to prevent it. |
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What are responsibilities of a subordinate lawyer?
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bound by the RPC notwithstanding he acted at directed of another person; do not violate RPC if they act in accordance w/ a supervisory lawyer's reasonable resolution of an arguable ? of prof duty.
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What does RPC say about making agreements that restrict an attorneys right to practice after termination of a re/ship?
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RPC only permits such agreements when they are
1. part of an agreement concerning retirement benefits or 2. part of the settlement of a controvery b/n private parties. |
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What are rules re: sale of a law practice under RPC?
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1. Entire practice must be sold
2. Seller must stop practice of law or stop practicing the geographic area 3. Cl fees cannot increase as a result. 4. Seller must notify all cls & of their right to hire a diff lawyer or take possession of their file. |
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How do CRPC re sale of a law practice differ from RPC?
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1. Notice to cls rules--more complicated including requirements for written notice from seller and purchaser
2. Seller is not required to stop practice (but sale may include valid non-compete) 3. Sale of entire practice not required; rather "substantially all" which allows seller to retain a few cls who pose a conflict of interest for the buyer or who have a long re/ship w/ the seller. |
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Definition of advertising v solicitation
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advertising-communication w/ public at large
solicitation--lawyer's ind contact w/ a layperson designed to entice the layperson into hiring the lawyer CRPC define communication & solicitation w/ greater specificity |
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SC has recognized lawyer advertising as
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commercial speech protected by the 1st & 14thAs which cannot be prohibited unless it is false or misleading
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Commercial speech such as lawyer advertising may be limited by regs that
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1. serve a substantial govt interest
2. directly & materially advance that interest & 3. are narrowly tailored to serve the substantial interest. (See ConLaw #217-220) |
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Do attorneys have a 1stA right to in person solicitation?
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No SC has determined states may develop prophylactic rules forbidding in person soliciation.
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What is basic rule about lawyer advertising?
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must be true & not misleading
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A communication is false or misleading if
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it contains MATERIAL misrepresentation of law or fact or omits info that is necessary to make communication as a whole not materially misleading.
CA does not have a materiality requirement--prohibits ANY untrue stmt. |
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What must lawyer advertising identify?
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name & address of at least one lawyer responsibile for ad's content.
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How long must a lawyer in CA keep advertising records?
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2 yrs.
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Can a lawyer pay people for recommending his services?
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No except pymt of reasonable ad fee, pymt of usual charges in connection w/ lawyer referral service or legal services plan or pymt in connection w/ sale of practice.
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May a lawyer enter into reciproocal referral arrangements
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Yes w/ lawyer or nonlawyer as long as it is not exclusive & lawyer explains the referral arrangement when making the referral
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What types of info may an attorney disclose in his ads?
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name of lawyer or firm, address & phone#s, types of services, basis of fees, foreign language ability, names of references
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CA lawyer has additional statutory rules on advertising which include prohibition of
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1. guarantee or warranty of outcome
2. words or symbols wh suggest quick $ 3. impersonation of a lawyer or cl w/o disclosing it is an impersonation 4. dramatization of accident or other event w/o disclosing it is a dramatization 5. contingent fee offer that does not warn that a cl who loses a case must still pay litigation costs. |
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Under CRPC, what lawyer communications are presumed to be false or misleading (rebuttable presumption re: advertising)
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1. those delivered to a potential cl who is in hospital or suffering from physical or mental distress
2. mailings that seek fee-paying work & are not labeled as advertising material 3. communications containing testimonials or endorsements w/o a disclaimer about results in the potential cl's case. |
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Gen rule about solicitation
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Lawyer must not seek fee paying work by initiating personal or live telephone contact or real time electronic contact w/ a prospective cl who is not a lawyer & w/ whom the lawyer has no personal, family or prior prof connection.
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Can a lawyer use agents (ie. runners or capers) to solicit?
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no lawyer may not use others to solicit in manner the lawyer could not do herself
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Can lawyer solicit legal bus from anyone through personal contacts?
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yes lawyer may solicit from her family, clients, former clients & other lawyers
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Can a lawyer offer free legal service w/o hope of pecuniary gain?
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Yes, offers of free legal service without hope of pecuniary gain are permitted.
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May a lawyer use targeted direct mail solicitations?
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yes, absent actual knowledge that the prospective cl does not wish to receive communi/ns from the lawyer, a lawyer may send truthful, nondeceptive letters to persons known to face a specific legal prob.
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ISSUE: prospective cl has indicated he does not want to be solicited
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A lawyer must not coerce or harass prospective cls nor solicit those who indicate they do not wish to be solicited
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Written or recorded communications w/ prospective cls known to need legal services must
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be labeled as "advertising material."
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Can a lawyer personally contact a prepaid or group legal service plan?
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yes & plan itself may make personal contact w/ perspective subscribers
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Re: communications about special areas of practice, lawyer
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1. may tell public in wh field of law she does or does not practice.
2. can hold herself out to pub as a "certified specialist" only if granted cert by state bar or accredited by ABA & clearly IDs org that certified her 3. who is admitted to patent practice or engaged in admiralty law may so state 4. CA--similar--& has a Board of Legal Specialization |
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Whether lawyers have responsibility to render pro bono legal services?
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CA no rule requiring lawyers to do pro bono, but B&P code states lawyers have duty "never to reject . . .cause of defenseless. . " & Bar has urged all CA lawyers to perform at least 50 hrs. RPC states every lawyer should aspire to render a specified minimum # of hrs of pro bono legal services per year (e.g. 50 hrs.)
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Lawyer may not avoid appointment by a tribunal to represent a person except
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for good causes, e.g. violation of the RPC or other law, unreasonable $ burden on lawyer.
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Duty of lawyers to cls w/ dimished capactiy
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Lawyer must maintain as normal a lawyer-cl re/ship as possible. A lawyer may seek the appointment of a guardian if the lawyer reasonable believes that the cl cannot protect herself from harm. BUT NOTE IN CA, the lawyer MAY NOT seek the appointment of a guardian for cl against the cl's wishes, even if lawyer reasonably believes the cl cannot adequately act to protect herself from harm.
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Can a lawyer provide legal services to a person not able to establish a lawyer-cl re/ship (diminished capacity) in an emergency sit?
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Yes if welfare of person w/ serious diminished capacity is threatened w/ imminent & irreparable harm. Lawyer owes the same duties to person as he would to cl & would not normally seek compensation.
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Gen rule re: conflict of interest
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A lawyer must avoid conflicts of interest.
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A concurrent conflict of interest occurs when
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1. rep of cl will be DIRECTLY ADVERSE to interest of another cl
2. There is a SIGNIFICANT RISK that rep of a cl will be MATERIALLY LIMITED by lawyer's personal interests or those of another cl, 3rd person, or former cl. |
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Despite concurrent conflict of interest, lawyer MAYunder RPC undertake rep if
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1. lawyer believes he can competently & diligently rep ea affected cl
2. rep not prohibited by law 3. rep does not involve claim of one cl against the other if case is pending before a tribunal 4. ea cl gives informed written consent |
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How do CA rules differ re accepting cl inspite of concurrent conflict of interest?
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1. does not contain "reasonable lawyer" standard
2. applies to potential & actual concurrent cl conflicts & 3. requires "written disclosure" (as opposed to informed, written consent) to cl when the conflict arises out of lawyer's prior re/ships or personal interests. |
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Gen rule re: imputed conflicts
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If a lawyer faces a conflict of interest, no lawyer in that firm may rep the cl--i.e. the lawyer's conflict is imputed to all the other lawyers in the firm.
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"Firm" w/ re: to imputed conflicts means
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not only a private law firm but also lawyers who practice together in a corp law dept or govt agency
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Gen rule of imputed conflicts does NOT apply to conflicts
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1. caused by former & current govt lawyers
2. caused by personal interest that will not present a sig risk of materially limiting the rep of the cl by the remaining lawyers in the firm 3. caused by lawyer's close family re/ship w/ another lawyer who is representing a diff client in the matter 4. caused by sexual re/ship w/ cl 5. arising out of the disqualified lawyer's prior assoc w/ a law firm & that lawyer is timely screened from any participation in the matter. |
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A lawyer's conflict of interest will not be imputed to the firm if based on former cls & following cond/ns are met
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1. lawyer is timely screened from any participation
2. disqualified lawyer gets not part of the fee 3. former cl gets prompt written written notice as well as certifications of compliance w/ the screening procedures |
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How does CRPC handle imputed conflicts?
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1. silent about imputed conflicts but CA case law has followed an approach similar to RPC.
2. CA courts are increasingly receptive to screening rather than disqualification of the entire firm. 3. Where tainted lawyer has actual cl confidences & then switched sides, imputed disqualification is automatic. |
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A lawyer must not enter into a bus deal w/ a cl UNLESS
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1. terms are fair & reasonable to the cl
2. terms are fully disclosed in writing 3. cl is advised to obtain ind counsel & given opportunity to do so 4. Cl understands the lawyer's role in the transac/n & gives informed consent in writing NOTE: Model RPC & CRPC very similar here |
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Issue: attorney receives substantial gift from a cl or designates himself as a beneficiary
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RPC: Lawyer prohibited from soliticting a gift or drafting an instrument giving the lawyer or person to whom related a substantial gift (except where cl is related to donee).
CRPC prohibits an attorney from inducing any substantial gift from cl unless cl is related, but CA lawyer not prohibited from drafting the instument. |
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Re gifts from cls, CA rules
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prohibit an attorney from inducing any substantial gift from cl unless cl is related, but CA lawyer not prohibited from drafting the instument.
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Issue: lawyer negotiates for literary or media rights based on representation
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RPC prohibit lawyer from entering an agreement giving lawyer literary or media rights to a portrayal based on info in the representation.
CRPC contains no specific rule. CA case law recognizes these agreements create a serious conflict of interest so trial judge must ensure D fully understands the conflcit & waives it if attorney is to continue. |
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Issue: attorney providing financial asst to cl
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RPC: lawyer prohibited from providing $ assist to cl except court costs & expenses of litigation, the repayment of wh may be contingent on the outcome of the case.
CRPC permit an attorney to lend cl $ & NOT restricted to court costs & litigation. It can be for any purpose if loan is made after lawyer is hired & cl gives attorney written promise to repay. |
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Issue: attorney gets paid by party other than cl
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RPC: 1. Cl gives informed consent
2. There is no interference w/ lawyer's independence of judgment or lawyer-cl re/ship 3. info re to representation of a cl is protected. In CA, consent must be in writing |
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Issue: aggregate settlement or agreement in multiple representation?
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Lawyer must not participate in making an aggregate settlement (or in crim aggregate plea agreements) unless ea cl gives informed consent in a signed writing.
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Issue: attorney negotiates an agreement to limit lawyer's liability before starting the representation
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RPC--can't do it unless cl is independently represented .
CRPC: lawyer cannot limit liability in any circumstance. |
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Issue: settling malpractice claim w/ unrepresented cl or former cl?
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Lawyer must not settle w/o 1st advising person in writing that indepedent counsel is desirable & giving reasonable opportunity for cl to do so.
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Issue: lawyer is closely related by blood or marriage to the attorney on the opposing side
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They must obtain informed written consent.
CRPC includes 3 more re/ships: lawyer is a cl of the other, 2 lawyers live together or have an intimate re/ship. |
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Issue: lawyer obtains proprietary interest in the cause of ac/n
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RPC: Lawyer may not gain proprietary interest except to acquire a lien securing fees or expenses or K w/ cl for a reasonable contingent fee in a civil case.
CA law does not authorize retaining liens & requires lawyer to promptly release to cl all her papers & prop. |
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Issue: sexual relations b/n cl & lawyer under RPC
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1. lawyer must not have sex re/ship w/ cl.
2. Except if lawyer & cl had a consensual sexual re/ship before representation begun. Even so, lawyer should make sure ability to represent cl will not be affected. 3. Lawyer who represents corp or org must not have sexual re/ship w/ person in or who supervizes or consults w/ lawyer. |
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Issue: sexual re/ships w/ cls in CA
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CA prohibts lawyer from
1. demanding sexual relations w/ a cl as a cond/n of the representation 2. entering into sex re/ship w/ a cl by coercion or undue influence 3. representing a cl incompetently b/e of a sex re/ship |
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Issue: conflicts b/n insurance carrier & policyholder-who does attorney represent?
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Some states say cl is the policyholder. Others, including CA say the policyholder & the insurance co are joint clients. No matter whom, lawyers eithical obligations are governed by RPC, not insurance K
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Issue: conflict of interest b/n perspective cl & former cl
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Lawyer may not represent a cl in the same or substantially related matter if that cl's interests are materially adverse to the interests of the former cl unless the former cl gives informed, written consent.
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Issue: conflict of interest b/n perspective cl whose case has to do w/ same or substantially the same matter in wh attorney's former firm was involved.
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Attorney cannot represent cl if interests of former firm are materially adverse to this person and about whom the lawyer had acquired material info unless cl gives informed written consent.
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Issue: using info gain in former representation against the former cl
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RPC: cannot do it except as permitted or required by RPC or unless the info has become generally known. CRPC are silent on revealing info of a former cl; but under Bus & Prof Code, lawyer must maintain confidences & secrets of cl.
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CA defines a cl as
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one who consults w/ lawyer, regardless of whether attorney-cl re/ship is formed
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Issue: attorney learns confidential info from a prospective cl adverse to another prospective cl
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Attorney may not represent the prospective cl unless he obtains written confirmation of informed consent from both the affected cl & prospective cl OR the disqualified lawyer is timely screened & receives no part of the fee in the matter.
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Issue: conflict of interest stemming from an initial consultation
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Attorney can be disqualified if he obtained confidential info during the initial attorney-cl consult even if legal services were not subsequently provided.
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Issue: trial counsel as wit--RPC
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RPC: attorney cannot accept case or must w/draw if attorney likely to be a necessary wit unless: 1. case is uncontested matter
2. testimony will concern only the nature & value of legal services or 3. w/drawal will cause cl. substantial hardship |
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Issue: CRPC prohibit trial counsel from testifying as a wit before a jury unless
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(1) testimony concerns only an uncontested matter
(2) the nature & value of services or (3) cl consents. |
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Issue: person associated w/ org attorney represents advocates an ac/n wh will cause org injury
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Attorney must protect the interest of the org. Attorney must explain the ID of the cl when lawyer knows the org's interests are adverse to the constituents w/ whom lawyer is dealing.
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Under RPC, steps lawyer must take in protecting interest of org when someone w/in org is acting in way wh will injure org
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1. report to higher authority--if necessary to highest
2. If highest authority fails to take timely ac/n attorney may report the relevant info to appropriate persons outside of the org. 3. Lawyer is only authoized to report to extent lawyer reasonably believes is necessary to prevent substantial injury to org. |
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Does CA adhere to RPC authoization to report ethical violation w/in org. to outside authority?
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No, CA prohibits lawyer from disclosing confidential info to an outsider unless necessary to prevent a crim act that will cause death or substantial bodily harm. CA lawyer may w/draw from the rep.
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May an attorney representing an org also represent directors, officers, SHs or others w/in org?
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Yes, subject to RPC rules re to conflicts of interest
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Lawyer's duties under Sarbanes-Oxley Act (Corps#140-1) include
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1. report SEC violation to chief legal officer (CLO)
2. CLO must investigate & take "all reasonable steps" to stop, remedy, report 3. mandatory reporting to SEC if CLO does not make appropriate response 4. may reveal "reasonably necessary" confidential info |
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Under Sarbanes-Oxley, the type of confidential info which is "reasonably necessary" for attorney to reveal is that wh will
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1. stop cl from committing a violation wh will cause substantial $ injury to cl or investors
2. rectify such $ injury if lawyer's services were used to further violation or 3. prevent cl from committing or suborning perjury in an SEC matter or lying in any matter w/in the juris/n of any branch of the fed govt. |
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Issue: conflict b/n CA law re strict confidentiality & disclosure rules of Sarbanes Oxley
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Securities lawyer who complies w/ Sanbanes-Oxley cannot be held civilly liable for doing so & cannot be disciplined under any inconsisten state rule.
SEC's effort to trump CA's strict confidentiality rule not yet tested in court. |
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Issue: lawyer is fired for complying w/ Sarbanes-Oxley
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Lawyer may report it to cl's board of directors, thus setting up wrongful termination suit.
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Issue: whether firm can represent cl whose interests are adverse to cl of a lawyer who has left firm (e.g. died, retired)
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Rep is not prohibited unless
1. matter is the same or substantially related 2. any lawyer in the firm has protected info 3. cl may waive disqualification |
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Under RPC can an attorney represent a cl in connec/n w/ a matter in wh lawyer previously participated as a govt employee?
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No, if lawyer participated personally & substantially as a govt employee he cannot participate in same matter in private practice unless the govt agency gives informed written consent.
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What is rule in CA about a former govt employee representing a cl in connec/n w/ a matter the lawyer participated previously as a govt officer?
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CA has not adopted the RPC rule, but Ca lawyer who has participated on the prosecution side of a crim case is prohibited from latter being on the defense side.
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Exceptions to rule that lawyer or firm must not accept govt appointment if they made a political contribution for the purpose of obtaining such employment
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Rule does not apply for uncompensated services, for appointment made on the basis of lawyer's experience & follows a process free of political contributions or made on a rotating basis from a list compiled w/o regard to political contributions.
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If former govt lawyer is disqualifed, may other attorneys in firm represent cl?
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Yes, if disqualified lawyer is screened, does not share in any fee & appropriate govt agency is promptly notified on screening arrangement. CA uses this screening procedure for former crim prosecutors. By case law, CA also allows such screening in civil cases.
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Issue: former govt lawyer knows confidential info adverse to cl in private practice
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Attorney may not represent cl but other attorneys in firm can do so if screened & receives no part of fee.
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Issue: current govt lawyer knows confidential info adverse to cl in former private practice
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Stricter rules than the opposite. Current govt employee must follow ordinary conflict of interest rules (concurrent conflicts, duties to former cls). Lawyer must obtain cl's informed written consent before working for the govt on the same or similar matter in wh confidential info would be relevant. Under RPC, lawyer must additionally obtain the informed written consent of the appropriate govt agency before undertaking the rep.
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Issue: current govt lawyer seeking private job w/ entity engaged in the same or similar matter in wh lawyer is serving
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Lawyer prohibited from such negotiations.
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May lawyer represent anyone in a matter in wh lawyer formerly participated as a judge?
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No except w/ informed, written consent of all parties. Special screening procedures outlined for former govt lawyers also apply to former judges.
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Issue: current judge seeking future job w/ party or party's lawyer
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Judge (or mediator, arbitrator, etc) prohibited from
doing so. But law clerk is permitted to negotiate for future employment w/ a party or party's lawyer if law clerk notfies judge. |
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Lawyer who serves as 3rd party neutral must
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make it clear he does not represent any of the parties as clients & explain diff b/n role as 3rd party neutral & lawyer
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Issue: potential conflict of interests if an attorney provides short term legal services in a special prog (law school, bar assoc, court, nonprofit, etc)
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Attorney is subject to concurrent conflict of interest rules only if lawyer knows the representation involves a conflict of interest. An imputed conflict will exist only if the lawyers knows another lawyer in his firm would have a conflict of interest.
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Issue: Client misunderstands fee
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Attorney has duty to avoid fee misunderstanding. RPC provide when an attorney has not regularly represented the cl, the fee must be communicated to the cl preferrable in writing before or w/in reasonable time after commencing representation. CA requires a written fee agreement if fees will exceed $1000
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Exceptions to CA's requirement of written fee agreement
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1. cl is corp
2. cl states in writing does not want written fee agreement 3. cl has received & paid for similar services before 4. lawyer acted in an emergency 5. writing is impractical for other reasons. |
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Issue: under RPC, whether fee excessive
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fee must be REASONABLE based on facts such as time, labor & skill requried to perform work, customary fee w/in locality, amt involved & results obtained, exp, reputation & skill of attorney, whether fee is fixed or contingent etc.
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Issue: CRPC whether fee is excessive
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CRPC similar to PRC except prohibits UNCONSCIONABLE fee
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Issue: minimum & max fee schedules
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Min--probably would violate fed antitrust laws as would agreement by bar assoc to follow schedule of max fees. Max fees for certain services have been imposed in a # of juris/ns by stat, court rules or court decisions.
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Contingent fee is
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dependent on the successful resolution of a cl's case & is payable from judgment proceeds
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Contingent fee agreement must be
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in writing sign by cl & must state the method by wh fee is to be determined.
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RPC prohibits contingent fee agreements in
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domestic relations & representing Ds in crim cases
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Do CRPC prohibit contingency fees in domestic re/ns & crim cases?
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no but other ethical considerations may come into play
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What if attorney working on contingency fee agreement is d/ced?
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he will be allowed to reasonable value of services received when & if cl wins case.
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Issue: paying referral fees to another lawyer under RPC
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RPC prohibit referral fees; but lawyer may ethically divide fees w/ an outside lawyer if IN PROPORTION to services performed by ea or ea lawyer assumes responsibility for the representation. Fee split must be in writing stating share ea lawyer is to receive, signed by cl. Total fee must be reasonable.
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ISSUE: Paying referral fee in CA
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CA allows payment of referral fee to outside lawyer if cl knows all the terms & consents in writing, & the total fee is not unconscionable nor increased b/e of referral fee. No proportionality requirement.
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Issue: lawyer does not have professional liability insurance
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Lawyer is not required to carry professional liability insurance; but lawyer is required to inform cl if he does not whenever representation is likely to exceed 4 hrs. Rule does not apply if lawyer has already told cl, to govt or in-house counsel or for legal services in an emergency.
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Attorney's basic obligations to cl include
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1. competence & care
2. preserving confidentiality 3. protecting property |
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Competent representation requires
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legal knowledge, skill, thoroughness & prep reasonably necessary for the representation. CA adds duty to supervise the work of subordinate attorneys & nonattorney employees, act w/ reasonable diligence & promptness & keep cl reasonably informed
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Duty to preserve confidentiality of information includes
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attorney-cl priv
duty of confidentiality |
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Attorney-cl priv allows
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cl to refuse to testify & prevent his attorney from testifying in court about confidential communications b/n them. (See EVID #178-188).
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Describe scope of attorney-cl priv
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Scope covers not only direct communic/ns b/n atttorney & cl but also made thru agent (like para legal). Only communications pertaining to legal services are covered--not other subjs like bus tactics or pol consequences.
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W/ corp, attorney-cl privilege covers confidential communications b/n the attorney &
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a high ranking corp offical or w/ any other corp employee if supervisor directs employee to talk w/ attorney & knows that the communication is to assist the corp in obtaining legal advice.
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Attorney's gen duty of confidentiality means
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attorney must not reveal info relating to the representation; applies to info learned before or after the representation of a cl; however & whenever derived.
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Under RPC, attorney may reveal confidential info if
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1. cl gives informed consent
2. disclosure is impliedly authorized in order to carry out the representation 3. lawyer reasonably believes it is necessary to prevent reasonably certain death or substantial bodily harm 5. disclosure is requried by a final order of the court, ethics rules or certain stats 6. disclosure is necessary to collect a fee or protect the lawyer or 7. disclosure is necessary to obtain confidential legal advice about lawyer's duty to comply w/ legal ethics rules. 4. disclosure is necessary to prevent cl from committing a crime or fraud likely to cause substantial $ loss |
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What is duration of attorney-cl priv?
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indefinitely, even if the attorney-cl re/ship has termianted; even survivies the death of the cl. But in CA, attorney-cl priv ends when a deceased cl's estate is settled & his personal rep is d/ced.
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What addition exception to attorney-cl priv does CA law provide?
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priv does not apply if lawyer reasonable believes that disclosure of a cl's confidence is necessary to prevent a crim act that the lawyer reasonably believes is likely to result in substantial bodily injury or death of a person.
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What are exceptions to attorney-cl priv?
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1. when cl seeks the attorney's services to enable or aid anyone to commit a future crime or fraud
2. when the communicaton is relevant to an issue of breach of the duties arising out of the attorney-cl re/ship 3. civil litigation arises b/n 2 persons who were formerly joints cls of attorney 4. whn attorney can furnish evid about the competency or intention of a cl who has attempted to make a will or transfer prop inter vivos |
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CA adds what exception to the attorney-cl priv?
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doesn't apply if lawyer reasonable believes that disclosure is necessary to prevent a CRIM ACT that the lawyer reasonably believes is likely to result in SUBSTANTIAL BODILY INJURY OR DEATH of a person
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Discuss attorney's duty of confidentiality
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Under RPC, a lawyer gen. must not reveal info re to the rep of a cl. The confidentiality requirement applies even if the info is acquired before or after the re/ship existed. It does not require the cl to indicate info that is to be confidential or permit the lawyer to speculate wheter particular info might be enbarrassing or detrimental The duty continues to apply even after the lawyer-cl re/ship has terminated.
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MAJ & RPC exceptions to duty of confidentiality
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1. cl gives informed consent
2. disclosure is impliedly authorized in order to carry out the rep 3. lawyer reasonably believes it is necessary to prevent a person's reasonably certain death or substantial bodily harm 4. disclosure is necessary to prevent cl from committing a crime or fraud that is likely to cause substantial financial loss to a person & the cl is using or has used the lawyer's services to committ the crime or fraud 5. disclosure is required by a final order of the court, ethics rules or certain stats 6 disclosure is necessary to collect a fee or protec the lawyer or 7. disclosure is necessary to obtain confidential legal advice about the lawyer's personal duty to comply w/ legal ethics rules. |
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Gen. CA exceptions to duty of confidentiality
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Altho CA has no ethics rule on confidentiality, lawyers promise in the Attorney's Oath to maintain confidences and secrets of their cls. On its face this promise has no exceptions, bu CA case law has created exceptions for disclosure.
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CA case law & legislative excep/ns to duty of confidentiality
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that wh is compelled by law or court order, required to collect attorney's fee, to defend against malpractice, ineffective assistance of counsel or other wrongdoing by the attorney. Legislation allows but does not require at attorney to reveal a cl's confidential info when necessary to prevent a crim act that will cause death or substantial bodily injury to someone.
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Explain diff b/n attorney-cl priv & duty of confidentiality
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Attorney cl priv apply only to communication made during the course of the re/ship & cover only the attorney's formal testimony. Duty of confidentiality protect from any disclosure all info re/d to the rep however & whenever derived.
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Issue: 3rd party needs eval of a matter affecting a cl from attorney
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Lawyer may provide if 1. lawyer reasonably believes making the eval is compatible w/ other aspects of lawyer's re/ship w/ cl &
2. lawyer obtains the cl's informed consent if the eval is likely to materially harm the cl's interest. |
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Attorney's duty to protect client's property means
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lawyer must hold prop of cl's sep from the lawyer's own prop (sep cl trust fund).
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CA: how long must attorney's keep records of cl's funds or other prop?
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5 yrs.
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Issue: dispute about what portion of funds belongs to the attorney v. cl
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Attorney must keep the disputed part separate.
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As an adviser, a lawyer must
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exercise ind prof judgment & render candid service
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Scope of representation:
Decisions to be made by cl include |
1. plea to be entered in crim case
2. waiver of jury trial in crim case 3. whether to testify in crim case 4. acceptance or rejection of settlement offers 5. what expenses to incur |
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Scope of representation:
Decisions to be made by lawyer include |
1. choice of motions
2. scope of discovery 3. choice of wits 4. direct & X 5. what evid to introduce |
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May lawyer limit the scope of representation?
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Yes, if lawyer feels antipathy for cl's position, lacks time, interest or competency, the lawyer may limit the scope if the limitation is reasonable & cl gives informed consent.
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If lawyer finds out cl is using the representation to commit a crime or fraud,
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lawyer must w/draw.
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If lawyer finds out cl is using the representation to cause substantial injury to prop or $ interests of another,
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lawyer MAY reveal enough of the cl's confidential info to prevent, rectify or mitigate the injury.
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If it is the only way lawyer can avoid assisting the cl's crime or fraud,
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lawyer MUST reveal the cl's confidential info.
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Can a lawyer discuss a proposed course of conduct w/ a cl, explaining it would be unlawful?
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Yes, but lawyer must not recommend illegal conduct or instruct cl on how to break the law.
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Does the prohibition against recommending unlawful conduct prevent a lawyer from testing the scope or validity of a particular law?
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No
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What is rule about lawyer communicating w/ opposing party's client?
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In representation of a cl, lawyer must not communicate directly about the matter w/ a person he KNOWS to be represented by counsel unless opposing counsel grants permission or he is otherwise authorized by law or court order
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What if opposing party's client initiates contact w/ lawyer?
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Rule about impermissible communication still applies
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Before lawyer communicates w/ a constiituent of an org, lawyer must get consent of the org's counsel if the constituent is one
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1. who supervizes or regularly consults w/ the org's lawyer about the matter
2, has authority to obligate the org w/ respect to the matter 3. whose conduct may be imputed to the org. 4. If constituent has his own counsel, consent of that counsel is sufficient |
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Does a lawyer need consent of an org's counsel to communicate w/ a former constituent?
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No but attorney must not violate org's legal right (i.e. pry into privileged communications.
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Can a lawyer communicate w/ an org's inside counsel about the subj of the representation w/o obtaining prio consent of the org's outside counsel?
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Yes
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When communicating w/ an unrepresented person, the lawyer must
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1. not state or imply that she is disinterested
2. clear up misunderstanidngs about his role in the matter and 3. not give advice other than to obtain counsel if she knows that her cl's interests have a reasonable chance of being adverse to thse of the unrep person. |
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When person does not have counsel of his own, may an attorney representing a cl communicate w/ the person directly?
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yes
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W/ respect to 3rd persons, a lawyer must not
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1. use any means w/ no other purpose than embarrass, delay or burden the 3rd person.
2. violate the rights of the 3rd person 3. make a false stmt or mat fact to a 3rd person 4. fail to disclose a material fact to 3rd person when disclosure necessary to avoid assisting in crim or fraud by a client, unless disclosure is prohibited by RPC. |
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What should a lawyer do who receives a doc relating to the representation wh appears to be confidential & privleged & lawyer knows or should know it was sent inadvertently?
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Lawyer must stop examining the doc & promptly notify the sender so sender can take protective measures.
If inadvertent disclosure occurs in fed sit, the attorney-cl priv or work product protection is not waived if the holder took reasonable steps to prevent disclosure & rectify error. |
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What are attorney's obligations in the conduct of litigation?
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Lawyer must not make frivolous claims or defenses. Also lawyer must make reasonable efforts to expedite litigation consistent w/ interest of the cl
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Lawyer's duty to tribunal includes not knowingly
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1. making false stmt of material fact or law to the tribunal
2. failing to correct a false stmt or material fact or law 3. failing to disclose a controlling legal authority that is directly adverse to the position of the cl & not disclosed by opposing counsel or 4. offering false evid. |
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Gen rule about offering evid lawyer knows to be false
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Lawyer must not offer evid he knows is false. If cl insists, attorney must 1st try to convince cl that evid should not be offered. If that fails, lawyer must refuse to offer the evid.
A lawyer MAY ask the tribunal for permission to w/draw but is NOT REQUIRED to do so unless the re/ship w/ cl has become so strained lawyer cannot competently represent cl. |
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What should lawyer do about evid lawyer believes to be false?
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Attorney MAY refuse to offer evid she reasonably believes is false except for testimony of a crim D.
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Under RPC, what should lawyer do if lawyer discovers false evid has been offered?
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Take remedial measures wh include speaking confidentially w/ cl or wit, warning about lawyer's duty not to offer false evid & seeking person's cooperation in w/drawing or correcting.
If that fails, lawyer MAY ask tribunnal for permission to w/draw. As a last resort lawyer MUST DISCLOSE enough info to set matter straight even if that means violating attorney-cl priv or duty of confidentiality. |
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What do CA rules say about what an attorney should do if he discovers false evid has been offered?
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CRPC are silent but lawyer is prohibited from misleading the judge or jury w/ false stmts & may only use means "that are consistent w/ the truth."
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Under MAJ view, what should lawyer do in sit in wh crim D insists on testifying falsely?
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B/e crim D has a Con right to testify, lawyer MUST allow D to testify even if lawyer reasonably believes it will be false. If lawyer knows it will be false, lawyer must try to convince D not to testify falsely. If that fails, lawyer MAY ask tribunal for permission to w/draw. As a last resort, lawyer must disclose info to the tribunal to set the matter straight, even if priv/ed or confidential. If that fails, lawyer MAY ask tribunal for permission to w/draw. As a last resort, lawyer must disclose info to the tribunal to set the matter straight, even if priv/ed or confidential.
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Under CA RPC, what should lawyer do in sit in wh crim D insists on testifying falsely?
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1st try to persuade cl not to testify falsely. If that fails, lawyer may ask tribunal for permission to w/draw. If that fails, the lawyer may call D as wit & ? him in an ordinary manner up to the point he know D will testify falsely. Then lawyer may allow D to testify in a narrative fashion. However, lawyer may not use any false testimony in his closing argument.
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In exparte proceeding, lawyer has a duty under RPC
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to inform tribunal of all material facts known to the lawyer that will enable tribunal to make an informed decision, whether or not the facts are adverse to his cl.
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Under RPC, fairness to opposing counsel includes rules that attorney must not
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1. unlawfully obstruct another party's access to evid or unlawfully alter, destroy or conceal a doc or other material having potential evidentiary value
2. falsify evid 3. knowingly disobey an obligation under the rules of a tribunal |
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Fairness to opposing counsel in pretrial procedures includes
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not making frivilous discovery requests or failing to make a reasonably diligent effort to comply w/ legally proper discovery request of opposing side.
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Fairness to opposing counsel during trial includes
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1. not alluding to any matter not reasonably relevant or supported, assert personal knowledge (except as a wit) or state a personal opinion
2, not requesting person other than client refrain from vol giving relevant info unless person is relative or agent of cl and attorney reasonably believes interests will not be adversely affected by refraining from giving such info. 3. CRPC also forbid a lawyer from threatening to bring disciplinary, adm or crim proceedings to gain an advantage in a civil dispute. |
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An attorney must avoid improper contact w/ jurors & the court, and thus is prohibited from
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1. seeking to influence a judge or juror by means prohibited by law
2. engaging in communication ex parte except as permitted by law or court order 3. engaging in conduct intending to disrupt a tribunal. |
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Issue: trial publicity
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Lawyer must not make an extrajudicial stmt that lawyer knows or reasonably should know will be disseminated by media & have substantial liklihood of creating prejudice.
Lawyer may make a public stmt such that a reasonable lawyer would believe is required to protect a cl from substantial prejudicial effect of publicity not initiated by the lawyer or her cl. |
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Under RPC, w/drawal is mandatory or a case should be declined if
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1. representation will result in violation of the RPC or other law
2. lawyer's physical or mental cond/n materially impairs lawyer's ability to represent the cl or 3. lawyer is d/ced |
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Under CRPC, w/drawal is mandatory or a case should be declined if
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1. lawyer knows or should know that cl is acting w/o probable cause & to harass or maliciously injure another person
2. representation will result in the violation of RPC but not necessarily a violation of another law. |
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Under RPC, reasons for permissive w/drawal
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1. W/drawl can be accomplished w/o material adverse effect on the interests of the cl
2. Cl persists in a couse of ac/n wh lawyer believes is crim or frauduelnt 3. Cl has used lawyer's services to perpetrate a crime or fraud. 4. Cl insists upon taking ac/n lawyer considers repugnant or w/ wh lawyer has a fundamental disagreement 5. Cl fails substantially to fulfill an obligation to the lawyer re lawyer's services & has been given reasonable warning lawyer will w/draw unless.... 6. representation will result in an unreasonable $ burden on lawyer or 7 other good cause for w/drawal exists. |
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CA allows permissive withdrawal
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1. when cl: a. insists on presenting a claim or defense that is not warranted under existing law
b. seeks to pursue an illegal course of conduct c. insists the lawyer pursue a coursel of conduct that is illegal or prohibted by CRPC or State Bar Act d. by other conduct renders it unreasonable difficult for the lawyer to carry out the rep e. insists in a matter not pending before a court that the lawyer engage in conduct that is contrary to the judgment or advice of the lawyer f. breaches an agreement or obligation to the lawyer as to expenses or fees 2. cont employment is likely to result in violation of CRPC 3. inability to work w/ co-counsel inb est interests of cl 4. lawyer's physical cond/n renders it diff for him to cont 5. cl knowingly & freely agrees to termination or 6. lawyer believes in good faith in a proceeding pending that court will find existence of other good cause for w/drawal. |
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When must lawyer continue representation notw/standing good cause for terminating?
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when tribunal orders attorney to do so
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When lawyer terminates representation, lawyer must
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take steps to extent reasonably practicable to protect a cl's interests
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Is lawyer still bound by professional standards of conduct in private bus or personal capacities?
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Yes, this is included in lawyer's responsibility to the legal prof
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RE; judicial candidate, an attorney must not
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make a stmt the lawyer knows to be false or w/ reckless disregard for the truth concerning integrity of qualifications of a judge.
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Public prosecutor in crim case must
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1. refrain from prosecuting a case not supported by PROBABLE CAUSE
2. make reasonable efforts to assure accused has been advised of the right to counsel 3. Not seek waiver of impt pretrial rights from unrepresented accused 4. Make timely disclosure to defense of all evid wh tends to negate guilt or mitigate offense 5. Exercise reasonable care to prevent investigators from making an extrajudicial stmt that prosecutor would be prohibited from making. 6. Not subpeona a lawyer to present evid against a cl unless the prosecutor reasonably believes info is not priv/ed, is essential & no feasible alternative 7. refrain from making extrajudicial comments wh have substantial likelihood of heightening pub condemnation of the accused. 8. Promptly disclose new, credible and material evid that creates a reasonable liklihood convicted D did not commit subj offense & make investigation into possible wrongful conviction. 9. Seek to remedy a conviction when prosecutor knows of clear & convincing evid D was convicted for crime did not commit. |
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Must a lawyer who knows another lawyer has commited a violation of RPC report it to the appropriate prof authority?
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Yes, even a nonpracticing lawyer if the violation raises a substantial ? as to lawyer's honesty or fitness as a lawyer. The rule does not require disclosure of confidential info.
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In CA, must a lawyer who knows another lawyer has commited a violation of CRPC report it to the appropriate prof authority?
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CA has no ehtics rule requiring a lawyer to report. Instead CA lawyers are required to report THEMSELVES to State Bar.
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When are CA lawyers required to report themselves to state bar?
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1. sued for malpractice 3 times in 12 months
2. found civilly liable for fraud or the like 3. sanctioned more than $1000 (except for discovery sanctions) 4. charged w/ a felony 5. convicted of certain serious crimes 6. disciplined in another juris/n |
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