Professional Responsibility

Front 1

What encompasses a lawyer's fiduciary relationship with a client?

Back 1

The FOUR C's: Conflicts Competency Communication - to your client Confidentiality

Front 2

Rule 1.1 - Competence

Back 2

L must provide competent representation to client (legal knowledge, skill, thoroughness and preparation) Judged by experience, training, preparation - some fields will require expertise

Front 3

Rule 1.3 - Diligence

Back 3

L must act w/ reasonable diligence and promptness in representing a client

Front 4

Rule 1.4 - Communication

Back 4

L shall (1) inform, (2) reasonably consult re: objectives, (3) comply w/ reasonable requests from C, (4) consult re: limitations of L and the C's expectations, (5) education C so they can make an informed decision

Front 5

Rule 1.6 - Confidentiality

Back 5

Cannot reveal info given by C unless given INFORMED CONSENT or it falls under an EXCEPTION (see next card)

Front 6

EXCEPTIONS TO 1.6

Back 6

A lawyer MAY reveal info regarded as reasonably necessary to: (1) prevent reasonably certain death or substantial bodily harm; (2) prevent C from committing a crime or fraud that is reasonably certain to damage financial or property interests of another (FUTURE); (3)prevent, mitigate or rectify injury to another's F or P interests reasonably certain to result from the C's crime or fraud (PAST); (4) secure legal advice about L's compliance w/ rules; (5) to defend against or establish a claim between a L and C; and (6) comply w/ other law or court order

Front 7

Rule 1.13 - Organization as Client

Back 7

L hired by an org. reps the org. If he knows of a law violation that will harm the org. the L must proceed in the best interests of the org. If this is not cured - he may reveal under Rule 1.6

Front 8

Rule 1.2 - Scope of Representation and Allocation of Authority Between Client and Lawyer

Back 8

L must abide by C's decisions concerning objectives of representation; He may take impliedly authorized action for the C; L's representation is not an endorsement of C's views or activities; L may limit scope of representation - so long as it is reasonable and C gives INFORMED CONSENT; L cannot counsel C to engage in criminal conduct

Front 9

Rule 1.14 - Client w/ Diminished Capacity - duties to

Back 9

L must attempt to maintain normal C-L relationship with the C; If L feels C is at risk of SUBSTANTIAL physical, financial or other harm unless action is taken and cannot adequately act in his own interests, L may take REASONABLY protective actions (GAL, guardian, conservator, etc.)

Front 10

Rule 1.16 - (part 1) - Declining Representation

Back 10

Decline or immediate withdrawal of L when: (1) it will violate the RPC or other law; (2) the L's physical or mental condition materially impairs ability to represent C; or (3) L is discharged.

Front 11

Rule 1.16 - (part 2) - Terminating Representation

Back 11

Withdrawal if: (1) it can be done w/out materially adverse effects on the C; (2) When C wants to pursue something L has said is criminal/fraudulent; (3) C has used L's services to perpetrate a crime/fraud; (4) C takes action that L finds repugnant or fundamentally disagrees w/; (5) C has not fulfilled obligation put upon him by L; (6) representation will result in an unreasonable financial burden; or (7) other good cause for withdrawal exists PROPER NOTICE OF W/DRAWAL MUST BE GIVEN TO COURTS AND CLIENT

Front 12

Rule 3.3 - Candor Toward the Tribunal

Back 12

L shall not knowingly: (1) make a false stmt of fact or law to a tribunal or fail to make a correction; (2) offer E known to be false - if C or anyone offers E in trial that L knows to be false, he must take REASONABLE REMEDIAL MEASURES - including disclosure to the court.

Front 13

Rule 4.2 - Communication w/ Person Represented by Counsel

Back 13

L will not communicate w/ a party the L knows to be represented by another L in the matter - unless L has consent of the L, or is authorized by court or law

Front 14

Rule 4.4 - Respect for Rights of Third Persons

Back 14

(1) L shall not embarrass, delay, or burden a third person in representing C. (2) L who receives a doc meant for someone else shall immediately notify the sender.

Front 15

Rule 1.5 - (part 1) FEES - Reasonableness

Back 15

Reasonableness of Fees: (1) time/labor, novelty/difficulty, and skill involved; (2) likelihood that taking this case would keep L from taking any other case; (3) feel customarily charged in locality for similar services; (4) amount involved and results obtained; (5) time limitations imposed by C or circumstances; (6) nature and length of prof. relationship w/ C; (7) Experience, reputation and ability of the L; and (8) Whether the fee is fixed or contingent.

Front 16

Rule 1.5 - (part two) FEES - Scope of Representation

Back 16

Scope of representation and basis of fees shall be communicated to the C through WRITING preferably w/in a reasonable time after commencing representation

Front 17

Rule 1.5 - (part three) FEES - Contingency

Back 17

Fee may be contingent except when prohibited by law. Must be in writing singen by client and must have EVERYTHING about it calculated. Cannot be done for FAMILY LAW or CRIMINAL DEFENSE case.

Front 18

Rule 6.1 - Voluntary Pro Bono Service

Back 18

L has a PR to provide representation to those unable to pay. L should give a SUBSTANTIAL MAJORITY of 50 hrs/year to persons of (1) limited means; or (2) a charity addressing needs of people w/ limited means. L should also provide financial support of people w/ limited means.

Front 19

Rule 6.2 - Accepting Appointments

Back 19

If appointed by a court, a L must represent a person UNLESS: (1)rep would violate RPC; (2)rep would be an unreasonable financial burden on L; or (3)case is so repugnant to L that it would impair the L/C relationship

Front 20

Rule 7.1 - Communications Concerning a L's Services

Back 20

L shall not make false or misleading communication about the L or the L's services - material misrep of fact or law, or omitting a necessary fact to make the statement misleading

Front 21

Rule 7.2 - Advertising

Back 21

A L may advertise through writing, recorded, or electronic communication

Front 22

Rule 7.3 - Direct Contact w/ Prospective Clients

Back 22

A L will NOT solicit professional employment from a prospective C when the motive is for PECUNIARY GAIN. If written - it must say ADVERTISING MATERIAL on the outside of envelope and on letter

Front 23

Rule 7.4 - Communication of Fields of Practice and Specialization

Back 23

L may communicate he does not practice a particular area of law and may not state certification in a field unless he is so certified

Front 24

Rule 7.5 - Firm Names and Letterhead

Back 24

Name of a L holding public office will not be used on letterhead when he is not a regular/active participant in the firm.

Front 25

Rule 3.1 - Meritorious Claims and Contentions

Back 25

A L shall not assert or defend an issue unless there is a basis in law or fact to do so that is not frivolous A L for a criminal D may assert that every E of a case must be established.

Front 26

Rule 3.4 - Fairness to Opposing Party and Counsel

Back 26

A L shall not: (1) unlawfully obstruct, alter, destroy or conceal something having potential E value. (2) falsify E; (3) Knowingly disobey obligation under the rules; (4) make frivolous discovery requests; (5) allude to matters not relevant; (6) request a third party not give relevant information to opposing party

Front 27

Rule 4.1 - Truthfulness in Statements to Others

Back 27

In representing another, a L shall not: (1)make a false statement of material fact or law to a third per

Front 28

Rule 4.3 - Dealing with Unrepresented Persons

Back 28

A L shall not state/imply that the L is a disinterested party and the L must correct any misunderstandings the unrep party may have. The L shall not give legal advice other than to secure counsel

Front 29

Rule 1.7 - Conflict of Interest - Current Clients

Back 29

A L cannot represent P1 if it presents a concurrent conflict with his current client P2. If there is a CC, a L may represent P1 if (1) L reasonably believes he will be able to provide competent rep. (2) it is not illegal; (3) the parties are not adverse to each other; (4) all affected parties consent

Front 30

Rule 1.8 - Conflict of Interest - Current Clients - SPECIFIC RULES

Back 30

An L cannot use info from C to disadvantage C unless IC is given; cannot solicit a substantial gift from C; L cannot provide financial costs - except an advance of court costs, etc.; no sex with C!

Front 31

Rule 1.10 - Imputation of C of I - General Rule

Back 31

When L is w/ a firm, he shall not knowingly represent a C when any of them practicing alone wouldn't be able to. When L leaves, the firm may represent a C that is materially adverse to L's C, so long as the firm retains no info about the C.

Front 32

Rule 3.7 - Lawyer as Witness

Back 32

L shall not represent at a trial where he is likely to be a witness unless the testimony is on an uncontested issue or T relates to legal services/billing; or disqualify would be a substantial hardship on C.

Front 33

Rule 1.9 - Duties to Former Clients

Back 33

L cannot rep a person whose case is materially adverse to a former C's (or the firm's former C), unless the former C has given IC in writing. L cannot use info to disadvantage former C.

Front 34

What are the duties owed to clients?

Back 34

CLIENTS LOVE FIERCE COUNSEL Confidentiality Loyalty Fiduciary Responsibilities Competence & other reasonable things In your analysis remember to do each client separately.

Front 35

What are the duties owed to everyone other than clients (court, third parties, public, etc)

Back 35

COURTS FEEL DIFFERENTLY Candor/truthfulness fairness dignity/decorum & other reasonable things

Front 36

What is the general rule regarding The Duty of Confidentiality (to your client)?

Back 36

Rule: you can't reveal anything related to the representation of a client without her consent. Duty of confidentiality lasts indefinitely after the formal representation.

Front 37

What is the rule regarding the attorney client privilege? And differences from confidentiality?

Back 37

The attorney client privilege allows a client and his lawyer to refuse to testify about confidential communications between them or their agents. - The model rule applies whether or not the info is privileged. Scope: Only applies to communications pertaining to legal services. - While, confidentiality covers any information that could lead to discovery of confidential information. Source: Only shields you from information from client or agents. - While, confidentiality the source does not matter. Timing: In **CA**, the attorney client privilege terminates when the client's case is settled. - While confidentiality continues indefinitely.

Front 38

What are the four major exceptions to the duty of confidentiality?

Back 38

1) Consent, Implied Consent 2) Crimes: . (i) Death or substantial bodily harm . - **CA** Must: 1) try to persuade client, 2) inform client of decision to reveal confidences. . (ii) Substantial Fraud or Financial Crime: (NARROW) . - Distinguish: **CA** Does NOT exist in **CA** 3) Defending yourself. 4) If compelled by law, final court order, or other controlling ethical duties

Front 39

Describe the duty of loyalty to your client

Back 39

To avoid conflicts: 1) an interest of you, 2) another client, OR 3) a third party materially limits or is adverse to loyal representation, you have a potential or actual conflict of interest. Also, remember imputed disqualification too.

Front 40

What do you do if conflicts between your clients emerge only after joint representation begins?

Back 40

Disclose potential and actual conflicts as they arise and get further CONSENT. Remedies: refuse to take the case, advise multiple clients to get separate counsel or withdraw

Front 41

Under what circumstances may you take on representation that poses a conflict of interest?

Back 41

1) You reasonably believe you can represent everyone effectively (Objective test) 2) You FULLY inform each affected client; and 3) The client consents in WRITING.

Front 42

What does imputed disqualification mean? What are the exceptions?

Back 42

This means that you and all members of your firm share conflicts. Exceptions are when: 1)conflict arises from previous GOVERNMENT service; OR 2)the conflict of the lawyer arises from a purely PERSONAL relationship that would not affect the ability of other firm members. - In these cases an Ethical Wall may make representation reasonable.

Front 43

What is an ethical wall?

Back 43

You block off any contact on a matter where there is a conflict of interest between the lawyer with the conflict and other lawyers in the firm.

Front 44

When can a client enter into business transactions with his lawyer or when can a lawyer obtain an interest adverse to the client?

Back 44

1) The TERMS must be FAIR to the client; 2) FULLY disclosed in understandable WRITING; 3) The CLIENT has an opportunity to consult an OUTSIDE lawyer; AND 4) Your client provides WRITTEN consent.

Front 45

In CA can you make loan advances to your client? What does the ABA say?

Back 45

**CA** yes. loans are okay as long as there is a WRITTEN IOU. ABA - NO, you cannot give financial assistance EXCEPTION: costs and litigation expenses when representing an indigent; and when the client promises to pay back advance of expenses.

Front 46

Can you prospectively limit your liability?

Back 46

NO! And can only settle with client over a malpractice claim if the client has consulted an outside attorney.

Front 47

Can you get a publication contract to your clients story?

Back 47

**CA** Maybe, but discourages such contracts before the end of proceedings. - Can be done if judge is satisfied that the client clearly understands and consents ABA: NO, not before end of proceeding.

Front 48

What is the rule regarding gifts to the lawyer or lawyer's family?

Back 48

You must not: 1) solicit a substantial gift from a client; OR 2) draft a legal instrument for a client which provides a substantial gift to you or your relative. . .a) Exception for close relatives

Front 49

Can trial counsel be a witness in CA? what does the ABA say?

Back 49

**CA** prohibits attorneys testifying in jury trials UNLESS the client consents in WRITING. ABA: NO, Unless Appearance won't prejudice client; AND 1) Testimony is uncontested or regarding the nature and value of services rendered; OR 2) If your distinctive value to the case would mean withdrawal would impose hardship on the client.

Front 50

What is the general rule regarding CONFLICTS BETWEEN CLIENTS?

Back 50

Generally: you may represent clients with potential conflicts with the PROPER CONSENT of all BUT it is almost NEVER proper if their interests are in ACTUAL CONFLICT. **CA**: rules absolutely prohibit you from taking a case adverse to a client you are currently representing. ABA: doesn't prohibit but it is rarely reasonable.

Front 51

What is the rule regarding insurance providers and policy holders as joint clients?

Back 51

**CA**: there is no prohibition to representing a policyholder and his insurance company as joint clients where the insurer's interest in each matter is only as an indemnity provider.

Front 52

What is the rule regarding prosecutor's later working on defense of the same case?

Back 52

**CA** NO, explicitly prohibits this! ABA: If gov't lawyer worked personally and substantially on a MATTER then it is a conflict. - Note that matter is litigation, not drafting regulations

Front 53

May other members of a firm represent a client against the government if one attorney is disqualified for previous government work? How?

Back 53

1) lawyer must be SCREENED OFF; and 2) lawyer must NOT SHARE in any part of the fee in the matter; AND 3) your gov't employer is INFORMED(not consent).

Front 54

What is the general rule regarding conflicts due to third party interference?

Back 54

Your sole duty is to your client, not to any third party. This arises when 3rd party is paying for services (Insurance), consent from client.

Front 55

May you accept compensation from a third party?

Back 55

yes, but only with informed client consent.

Front 56

What does the Sarbanes-Oaxley Act require for securities lawyers? CA?

Back 56

1) you must report a security law violation to the CEO or highest legal counsel of the company. if they don't respond... 2) go to the board or the highest authority in the company. 3) if that doesn't work and you reasonably believe you need to prevent fraud or substantial injury to investors or the organization, you may disclose without client consent confidential info to the SEC. **CA** specifies permissive, not mandatory reporting to a higher internal authority and would prohibit outside publication. but preemption would mean **CA** lawyer would have to comply with sarbanes oxley.

Front 57

In NON-CONTINGENT fee cases, what do **CA** and the ABA require attorney fee agreements to include?

Back 57

1) how the fee is calculated; 2) what services are covered; AND 3) the lawyer and client's duties. **CA**: agreements must be in writing unless: (i)fee under $1000; (ii)emergency; (iii)routine for regular client; OR (iv)corp client.

Front 58

For contingent fee cases, what do the ABA and **CA** require for content?

Back 58

ABA WRITTEN fee agreement must say: 1) your percent; 2) what expenses are to be deducted from recovery; AND 3) whether your percent is taken before or after expenses **CA** also requires that agreements state: 4) how work not covered by the contingency fee will be paid, AND 5) that lawyer's fees are negotiable, not some standard percent of recovery.

Front 59

Which kinds of actions allow contingent fees?

Back 59

ABA: contingent fees may not be used in domestic relations or criminal cases. **CA** says okay to contingent fee divorces provided the fee arrangement won't encourage the breakup of an otherwise savable marriage.

Front 60

In a contingent fee case, how is a lawyer who terminated his services before an award treated?

Back 60

If and when client wins, then lawyer can recover in quantum meruit(proportion of work) for contingent fees.

Front 61

When are fees too high?

Back 61

**CA**fees must NOT be UNCONSCIONABLY high. ABA says fees MUST be REASONABLE

Front 62

Can an attorney fee-split with attorneys inside his firm? outside the firm?

Back 62

Inside = Yes Outside = Yes if: 1) the division is PROPORTIONAL to work done; AND 2) with WRITTEN disclosure and consent of client.

Front 63

What is CA's/ABA's policy on referral fees?

Back 63

**CA** Allowed, if: 1) total fee is not unconscionable; AND 2) total fee is not increased due to the split. ABA PROHIBITS referral fees.

Front 64

Is fee splitting allowed with non lawyers?

Back 64

Generally NO, Exceptions: (i)Pension or Death benefits; OR (ii)Share with NONPROFIT that employed or recommended the lawyer

Front 65

What is the rule regarding client trust accounts including property, money, and records?

Back 65

Personal Property: Duty to safeguard your client's property by labeling and storing it in a safe. Money: Must be placed in a client trust account. - Possibly with interest to client; or if small, then interest to state bar. Records:Duty to keep good records for your client. - **CA** requires you to keep these records of client property for five years.

Front 66

Describe the duty of competence.

Back 66

Duty of competent to use the legal knowledge skill thoroughness and preparation reasonably necessary for the representation. No knowledge of Legal Area, you must: (i) Be able to put in the time to learn it without undue expense or delay to your client; (ii) Associate with a lawyer competent in the area; OR (iii) Refuse to take the case.

Front 67

Describe the other common sense duties to your client

Back 67

Duty of Diligence: you have to duty to diligently, promptly and zealously pursue your case to completion. Duty to Communicate: you have a duty to keep your client informed about the case including settlement offers.

Front 68

What is the rule regarding accepting representation?

Back 68

Generally: You are free to accept or to reject any case. You SHOULD accept, as part of your duty: a) defenseless or oppressed; AND b) PROBONO(aba says 50 hours probono is urged). Conversely you MUST REJECT a case if it would cause you to violate a law or disciplinary rule to take it.

Front 69

What type of decisions is the client supposed to make and what are decisions for the lawyer to make?

Back 69

Client: decisions regarding her substantive rights (whether to testify in a criminal case, accepting plea bargains or settlement offers). Attorney: decisions on procedure and legal strategy (choice of motions, what discovery to seek). if you disagree, you can limit the scope of representation.

Front 70

When must you withdraw from representation?

Back 70

1) the client fires you 2) mandatory withdrawal . .a) you must if continuing would violate a law or ethical rule. 3) permissive withdrawal. . .a) If it will NOT cause UNDUE DELAY or DISTRUPTION; AND . .b) you convince the court there is good cause: . . . .(i) Failure to Pay . . . .(ii) Acts illegally (ABA also allows withdrawal if your client has used your services to commit a crime or fraud) . . . .(iii) Insists on pursuing an objective you find repugnant or imprudent

Front 71

What are procedures for withdrawal from a case?

Back 71

You must: 1) provide timely notice to the client, AND 2) you also must promptly return: (a) any unspent fee and expense advances, AND (b) all material papers and property of client. - - Include everything needed to pursue the case, even work product, and even if the client has not paid **CA** forbids withholding your client's materials for money.

Front 72

Describe the duty of candor to the public and dignity of the profession regarding advertising and solicitation.

Back 72

1) Attorney advertising and solicitation is commercial speech under the 1st Amendment. 2) Advertising must not be false or misleading. . .- **CA** presumes improper any ad that contains guarantees, warranties or predictions of a result. 3) You can't claim you are a certified specialist unless you are. 4) Ads must not harass or solicit someone who indicated they wanted to be left alone. . .- Cannot use direct mail to solicit personal injury or wrongful death clients within 30 days of accident 5) Ad must be LABLED as advertising and you must keep records of ads for 2 years.

Front 73

What are the rules regarding solicitation?

Back 73

Do not seek employment by initiating a live or telephone contact with a prospective client with whom you have no prior contact. **CA** presumes that communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that you should know are not in the physical or mental state to exercise judgment.

Front 74

Describe the duty of candor to the court and fairness to your adversary

Back 74

Generally: A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. 1) Duty to present facts and evidence truthfully: 2) Duty to produce evidence 3) Duty to state the law truthfully 4) Duty to uphold the law

Front 75

What is the duty in communication with adversaries and third parties?

Back 75

1) You must not lie to people or MISLEAD them as to your interests. 2) You must not VIOLATE legal rights of a person to obtain evidence or EMBARRASS them. 3) No communication with a party you know is represented by counsel without consent of counsel.

Front 76

What are a lawyers duties when dealing with the press?

Back 76

1) You must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case. EXCEPT: . .a) matters in public record or routine booking info . .b) warning the public; . .c) informing them of ongoing investigation or asking for help; . .d) statements required to protect your client from substantial undue prejudice from recent publicity not self initiated. NOTE: Prosecutors and their associates must not make comments that have a substantial likelihood of heightening public condemnation of the accused.

Front 77

What are the basic and special duties of prosecutors?

Back 77

Prosecutors have higher ethical obligations, they must: 1) have probable cause 2) protect the accused's rights, including not subpoenaing a lawyer to present evidence about a client unless it is essential and unprivileged; AND 3) timely disclose evidence favorable to the defense.

Front 78

What are the duties of impartiality and decorum?

Back 78

Duty to preserve the impartiality and decorum of the tribunal: 1) don't try to influence anybody improperly (jurors mostly) 2) no chicanery (trickery esp by lawyers and politicians) 3) duty to preserve decorum of the tribunal.

Front 79

What duty does an Attorney have to expedite a case?

Back 79

Duty to Expedite cases: 1) Delay: . a) **CA** must not delay cases to harass an adversary. . b) ABA, you have affirmative duty to expedite. 2) You have a duty to follow valid procedural rules or court orders unless you are making a good faith challenge to their validity. You must not abuse or obstruct discovery.

Front 80

Are you allowed to practice in another state while suspended or not admitted?

Back 80

No unless allowed by law, a pro hac vice order by the local court or under limited exceptions. **CA** Multi Jurisdictional Practice: 1) Require lawyer to register with CA bar 2) pay dues 3) satisfy continuing legal education requirements; AND 4) be subject to CA ethics rules. ABA Multi Jurisdictional Practice, Allows temporary practice by lawyer in good standing in another state if: 1) Lawyer associates with locally admitted lawyer; 2) services relate to alternative dispute resolution; OR 3) the matter arises out of matters reasonably related to the lawyer's practice.

Front 81

What is your duty regarding reporting misconduct?

Back 81

ABA rules REQUIRE a lawyer to REPORT another's violation of the rules if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge. **CA** does not require this, but requires SELF REPORTING for lawyers charged with felony or certain crimes, civil liability for fraud, breach of fid duty, discipline in other jurisdiction or sued for malpractice or sanctioned.

Front 82

What are duties regarding orders by supervising attorneys?

Back 82

Depends: 1) If it is a clear violation, you are subject to discipline 2) If it is a debatable problem, then supervisor is solely responsible

Front 83

What are duties of supervising attorneys?

Back 83

1) Supervisor is responsible if he ratified or knew of conduct and failed to take action 2) Managing partners must make reasonable effort to ensure that everyone in firm follows rules 3) Inaction: in **CA** you can be disciplined for knowing about a fellow firm member's violation and doing NOTHING to prevent it.