Professional Responsibility

Front 1

Applicable Law

Back 1

(1) California and ABA authorities
-Unless otherwise directed
-ABA Model Rules for majority guidance.

(2) NOT COVERED: Code of Judicial Conduct

Front 2

Duties Owed by to CLIENT

Back 2

(1) Confidentiality
(2) Loyalty
(3) Financial Responsibility
(4) Competence
(5) Otherwise act reasonably

Front 3

Opening Sentence for PR

Back 3

"The lawyer has a duty of [fill in a duty] to [fill in a person or thing]."

Front 4

Duties Owed by to Court and Others

Back 4

(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum
(4) Otherwise act reasonably

Front 5

To whom does an attorney owe duties to?

Back 5

(1) Clients & Prospective Clients
(2) Court/tribunal
(3) Adversaries (parties & their counsel)
(4) Profession
(5) Third parties
(6) Public

Front 6

Mnemonic for Duties Owed

Back 6

Clients Love Fierce Counsel; Court Feel Differently

CLIENT:
(1) Confidentiality
(2) Loyalty
(3) Financial Responsibility
(4) Competence

OTHERS:
(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum

Front 7

Duty of Confidentiality

Back 7

Attorney cannot reveal anything "related to the representation" of a client without her consent.

-Client does not have to request confidentiality

Front 8

Disclaimer of Confidentiality

Back 8

Disclaimer MUST be in sufficiently plain terms for a lay person to understand.

VALID
"I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm."

INVALID
"I agree I am not forming an attorney-client relationship or a confidential relationship by submitting this question."

Front 9

Duty of Confidentiality

v.

Attorney-client privilege

Back 9

(1) Duty of Confidentiality
-PR Rule
-Covers: all communications pertaining to legal services AND disclosures that could reasonably lead to discovery of confidential information by a third party
-Covers information obtained from non-parties

(2) Attorney-client privilege
-Evidentiary Rule
-Covers: only communications pertaining to legal services, not other subjects like business tactics or political consequences.
-Covers information obtained ONLY from parties and their agents

Front 10

Duty of Confidentiality: 5 Exceptions

Back 10

(1) Consent
-Implied; or
-Express

(2) Bodily Injury or Death
-CA: act must be criminal; & good faith attempt to (i) dissuade; and/or (ii) disclose
-ABA: any act resulting in substantial bodily injury or death

(3) Pecuniary Loss and Fraud
-CA: NO disclosure
-ABA: Allows IF: (i) used/using legal services to further; & (ii) disclosure would prevent or mitigate substantial financial loss

(4) Attorney Self-Defense
-MalPractice
-Disciplinary action
-Not paying bill

(5) Compelled by Law

Front 11

Bodily Injury or Death Exception to Confidentiality

ABA

v.

CA

Back 11

ABA
(1) may disclose what’s necessary
(2) if reasonable belief it is necessary
(3) to prevent an ACT likely to result in
(4) reasonably certain death or substantial bodily harm

CA
(1) If reasonable, make good faith effort to dissuade client
(2) if that fails, inform the client intent to disclose
(3) may disclose what’s necessary
(4) if reasonable belief it is necessary
(5) to prevent a CRIMINAL act likely to result in
(6) reasonably certain death or substantial bodily harm

NOTE:
CA must 1st attempt to dissuade and inform of intent to disclose
CA the act must be CRIMINAL

Front 12

Pecuniary Loss and Fraud Exception to Confidentiality

ABA

v.

CA

Back 12

ABA
(1) IF client used or is using your services
(2) to commit the crime; and
(3) disclosure would prevent or mitigate SUBSTANTIAL financial loss.


CA
NOT a recognized Exception

Front 13

Conflicts of Interest
(The Duty of Loyalty)

Back 13

RULE
(1) If an interest of you, another client, or a third party
(2) materially limits or
(3) is adverse to loyal representation
(4) conflict of interest exists
(5) disclosure and withdraw necessary

EXCEPTION
(1) Objectively reasonable belief you can represent everyone effectively
(2) Inform each affected client (watch for confidentiality issues)
(3) Clients consents, confirmed in writing

REMEDY
(1) Refuse to take the case
(2) Advise clients to get separate counsel, OR
(3) Withdraw

Front 14

Conflicts of Interest: Imputed disqualification

Back 14

RULE:
-All lawyers of a firm share conflicts. This includes private firms or corporate law departments.

EXCEPTION:
(1) conflict arises from previous government service; OR
(2) purely personal relationship
(3) Creation of an "ethical wall"

NOTE:
*CA follows these rules for disqualification, but does not subject a lawyer to discipline for imputed conflicts under its ethical rules

Front 15

Business Transactions or Adverse Interests Between Attorney and Client

Back 15

RULE
Allowed IF
(1) fair terms;
(2) full, lay disclosure in WRITING;
(3) opportunity obtain outside counsel; and
(4) written consent

Front 16

Serving on a Client's Board as a Director

Back 16

RULE:
Allowed BUT strongly discouraged, almost always a violation of the duties of loyalty and confidentially

NOTE: BOD of a Legal Services Organization
Allowed IF:
(1) legal services organization
(2) not your employer
(3) no knowingly participation in decisions or actions adverse to your clients

Front 17

Limiting Malpractice and Professional Disciplinary Liability

Back 17

RULE
Not permitted

EXCEPTION
-Settlement of malpractice claim allowed after written advise to consult an outside counsel

-ABA Only: may limit liability if client is independently represented in making the agreement

Front 18

Obtaining Publication Rights of an ONGOING Case

Back 18

RULE:
(1) CA:
-Discouraged, but allowed if the judge believes:
(i)client clearly understands; and (ii) consents

(2) ABA:
-Not allowed before the representation has ended

Front 19

Attorney Loans and Advances to a Client

Back 19

RULE:
(1) CA:
(i) prohibits the promise of paying a prospective client's debts
(ii) but allows loans in all matters IF there is a written IOU

(2) ABA
(i) No financial assistance
(ii) Except litigation expenses for indigents;
(ii) Except advance of litigation expenses in contingent fee cases

Front 20

Conflicting Duties When Circumstantial Evidence is Involved (ring tan)

Back 20

Confidentiality to the client

Fairness to the court and opposing counsel

Front 21

Duty of fairness to the court and opposing counsel

Issues re: evidence

Back 21

A lawyer must not unlawfully alter, destroy, or conceal evidence. Further, it is a crime to destroy or conceal evidence.

Front 22

3 Malpractice Concepts

Back 22

(1) Negligence
(2) Breach of Fiduciary Duty
(3) Breach of K

-Discuss ALL

Front 23

2 Conflict of Interest Concepts

Back 23

(1) Potential conflicts
(2) Actual conflicts

Front 24

Any time you see a non-lawyer in a PR question start thinking...

Back 24

Unlicensed practice of law

Front 25

Use of Client Information

Back 25

IF:
(1) disadvantages client; and
(2) without consent

THEN violates:
(3) loyalty; and
(4) confidentiality

Front 26

Gifts to lawyer or lawyer's family

A lawyer may not...

Back 26

(1) SOLICIT a substantial gift from a client;

OR

(2) DRAFT a doc to a non-relative client that provides a substantial gift to L or L's relative

Front 27

If opposing counsel is of "close relations" to L...

Back 27

L may not oppose that party
*UNLESS:
Informed client consent

"Close relations" includes:
ABA: immediate family
CA: immediate family & shackmates

NOTE:
Not imputed to other firm members

Front 28

If Trial counsel is a NECESSARY witness

Back 28

CA (lenient)
(1) may not testify in jury trials
UNLESS:
(2) client consents in writing

ABA (strict)
(1) may not be counsel & witness
UNLESS:
(2) no prejudice to client; and
(3) uncontested testimony OR re: nature/value of services rendered; OR
(4) withdrawal would impose substantial hardship on the client

NOTE:
Not imputed to other firm members

Front 29

Potential Client Conflicts

Back 29

L may represent clients with potential conflicts IF
-proper consent of all

NOTE
Almost never may represent if actual conflict exist

Front 30

Actual Client Conflicts

Back 30

L may NOT represent if actual conflict exist

NOTE:
L may represent if potential conflicts with
-proper consent of all

Front 31

May L take a case the is adverse to a client's interest (as opposed to the same matter)?

Back 31

CA
NO if L is currently representing client
Regardless of the relationship of the cases

*Unless:
policyholder + insurance co as "joint clients"
IF ONLY an indemnity issue

ABA
Probably NO.
Because it is rarely "reasonable"

Front 32

May L take a case the is adverse to a client's position (former client is not a party)?

Back 32

YES
(1) consent of both clients; AND
(2) neither would be disadvantaged

If not, L must withdrawal

Front 33

3 ways client conflicts arise

Back 33

(1) representing BOTH ∆ and π
-NEVER allowed (unless intermediary)

(2) Opposing a current client's INTEREST (new case)
-Almost NEVER allowed (unless insurance co and client)

(3) Opposing your client's POSITION (legal/illegal)
-Typically ALLOWED w/ consent

Front 34

Attorney as intermediary

Attorney may represent multiple clients in a single suit when...

Back 34

(1) Insured & insurance company;
(2) A corporation & directors, officers, employees, or shareholders;
(3) Spouses in a divorce or will

NOTE
Attorney is only acting as an intermediary; reasonable consent is still needed

Front 35

Duties to former clients when taking on new clients

Back 35

(1) May not take on a new client with interests materially adverse to a former client
(2) UNLESS former consents

NOTE:
This will violate (i) continuing duty of confidentiality & (ii) loyalty to former client

Front 36

Former government lawyer now in private practice

Back 36

CA
-Case law allows screening of government lawyers
-HOWEVER, prosecutors may NOT work on the defense of the same case

ABA
(1) IF the gov lawyer worked "personally and substantially" on a "matter"
(2) THEN COI to work on the same "matter" later in private practice

NOTE:
NOT Imputed IF
(1) screened off;
(2) NO share of fee in that specific matter; AND
(3) Gov employer is notified (need not consent)

Front 37

Compensation from a 3rd party...

Back 37

Allowed with informed client consent

Front 38

Organizational Clients

Back 38

-Client is the entity

For Securities lawyers:
(i) MUST report up 1st THEN
(ii) to prevent fraud, substantial injury to the org/investors, OR if L's services were used,
(iii) MAY info to the SEC w/o client consent

CA
(i) MAY report up
(ii) Prohibits reporting out
(iii) HOWEVER, federal preemption allows reporting out

Front 39

Non-contingent fee arrangements must include:

Back 39

ABA
(1) how the fee is calculated;
(2) what services are covered; and
(3) lawyer and client duties.

CA (same as above +)
(4) in writing,
*Unless:
(i) under $1000;
(ii) corporate client;
(iii) routine services for a regular client; OR
(iv) emergency or impractical

NOTE:
Charging liens are ONLY allowed in contingent fee arrangements

Front 40

Contingent fee arrangements must include:

Back 40

ABA
(1) writing
(2) signed by the client
(3) percentage
(4) expenses to be deducted
(5) whether percent is taken before or after expenses

CA (same as above +)
(6) how additional services will be paid
(7) negotiable ("fees not set by law")
(*) charging liens allowed

NOTE:
-If fired before the completion, seek recover in quantum meruit for value of services already rendered.
-Liquidated damages provision must be reasonable (k law)

Front 41

Contingent fee arrangements prohibited for...

Back 41

ABA
(1) domestic relations
(2) criminal cases

CA
(1) silent on criminal cases
(2) allowed for divorces IF
"fee arrangement won't encourage the breakup of an otherwise savable marriage."

Front 42

Excessive fees

Back 42

ABA
-Fees must be reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc.

CA
-Fees must not be unconscionably high

Front 43

Fee Splitting

Back 43

(1) Lawyers from same firm
-allowed

(2) Lawyers from other firm
-allowed IF
-total fee is ethical, disclosed in writing, and consent
*ABA: proportional to the work or liability

(3) Non-Lawyers
-NOT allowed
UNLESS:
-"pension" to deceased lawyer's heirs
-non-profit org that employed or referred (ct awarded fees)
-Referral fees to qualified lawyer referral service

Front 44

Duty to manage client funds

Back 44

(1) No borrowing or commingling


(2) Safeguard client’s property

Trust Account:
(i) Large funds
individual client; interest bearing; interest belongs to the client
(ii) Small funds for short period
pooled client trust account; checking account only; interest used for bank's services remainder goes to the state bar to fund legal services for the poor

Disputed claim (fees or 3rd party)
-withhold portion in trust account until resolution of claim


(3) Accounting
-keep good records
-render accountings
-notify of moneys received
-pay promptly money due to him

*CA: records kept for 5 years after final distribution

Front 45

Duty of competence

Back 45

(1) Render competent service to your client

(2) Failure:
(i) discipline by the Bar
(ii) disqualification as counsel; and
(iii) civil malpractice liability

(3) Competence
-legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

NOTE:
L may take case if he is incompetent in that area IF:
-can put in the time to learn it without undue expense or delay to your client, OR
-associates with a lawyer competent in the area

Front 46

Malpractice

Back 46

(1) Civil case brought by a π for money damages

(2) π must prove a legal claim:
(i) breach of contract
(ii) tort (reasonable attorney standard)
(iii) Breach of duty (tort)

Front 47

Is an attorney subject to ethical violations also per se liable for a malpractice action?

Back 47

NO

While an ethical violation may be relevant evidence of malpractice, it does not create a presumption of it

Front 48

Duty of diligence

Back 48

Diligently, promptly and zealously pursue your case to completion.

Front 49

Duty to communicate

Back 49

Keep your client informed about the case
-settlement offers
-return phone calls

*Settlement offer made to joint clients
-convey offer to ALL clients
-acceptance ONLY after ALL agree on the division

Front 50

Is there a duty to represent a potential client?

Back 50

NO
-L is free to accept or reject any case

HOWEVER
-Duty to the public and profession suggests acceptance of:
(a) defenseless or oppressed
(b) 50 hours of pro bono work per year for indigent clients

Front 51

Duty to Reject Cases

Back 51

L MUST reject a case IF acceptance would violate:
-law OR
-ethical rule

Typical problems:
-L not in physical or mental shape (duty of competence); OR
-Frivolous legal argument (duty of candor of to the court)

Front 52

Client Powers

v.

Attorney Powers

Back 52

(1) Client makes decisions re: substantive rights:
-testify in a criminal case
-accepting plea bargains or settlement offers

(2) Lawyer makes decisions re procedure and legal strategy
-choice of motions
-what discovery to seek
-who to call as a witness (besides client in a criminal matter)

*Disagreement:
L may limit the scope of representation, with client consent.

Front 53

Duties to withdrawal from representation

Back 53

(1) Mandatory withdrawal
-If continuing would violate a law or ethical rule

(2) Permissive withdrawal
-If you convince the court there is good cause; and
-withdrawal will not cause undue delay or disruption

Front 54

Procedures for withdrawal

Back 54

(1) Timely notice to the client; and

(2) Return:
(i) unspent fee and expense advances, and
(ii) all material papers and property of the client
-even if client has not paid

Front 55

State Limits on Advertising and Solicitation

Back 55

(1) Advertising and Solicitation are protected by 1st amendment

(2) Commercial speech analysis (intermediate scrutiny):
(i) Gov's burden
(ii) substantial interest (preserving dignity profession, or citizen privacy)
(iii) directly advances that interest
(iv) narrowly tailored

Front 56

Rules Re: Advertising

Back 56

(1) Must not be false or misleading

(2) No unjustified expectations or unverifiable comparisons
(*) CA: guarantees, warranties, or predictions presumed improper
(*) CA: no testimonials or endorsements w/o express disclaimer that they are not a GWP

(3) No claims of specialization UNLESS "certified specialist"
*CA "certified specialist"
-Board approves based on:
-Experience, an Examination, Education, and Evaluations
*ABA "certified specialist"
-Org approves
-Certifying organization must be identified in communications

(4) Must not harass

(5) Targeted direct mail must stated "Advertising Material"

(6) Records of the content and placement of any ad for 2 years.

Front 57

Rules Re: Solicitation

Back 57

(1) Don’t seek professional employment
(2) for pecuniary gain
(3*) by initiating a live or telephone contact
(4) with a prospective client of no prior professional, personal or family relationship

*ABA
"real time electronic contact”
*CA
Strictly live or telephone contact

NOTE:
These rules apply to agents of the attorney

Front 58

Solicitations presumed improper in CA

Back 58

(1) at the scene of an accident or
(2) en route to a medical facility
(3) to those known to be physically or mentally vulnerable

Front 59

Duties of Candor and Fairness

Back 59

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

These duties may override conflicting duties of confidentiality and loyalty to your client

Front 60

Duty to present Facts and Evidence truthfully

Back 60

(1) No false statement of material fact
(2) No offer of evidence known false
(3) Must correct a false statement of material fact or law previously made

Front 61

Client Perjury

Back 61

Must not knowingly facilitate client perjury.

(1) Civil case:
-Must refuse to call the client as a witness

(2) Criminal case
(i) Try to withdraw form the case, if that fails,
(ii) Split:
*CA: Allow D to testify in narrative fashion, but do not further the deception, but may not disclose
*ABA: tell the judge, constitution does not protect perjury

NOTE:
Criminal case issues:
-5th Amendment right to testify
-6th Amendment right to the effective assistance of counsel

Front 62

Duty to produce evidence

Back 62

(1) Must not suppress any evidence regardless of your duty of loyalty

(2) Must not obstruct access/tamper with fruits or instrumentalities of a crime

(3) May NOT disclose communications relating to the evidence (confidential)

Front 63

Interference with evidence

Back 63

(1) Look but don’t touch
-looking at evidence not yet discovered by the other side does not require disclosure

(2) If you touch you must reveal
-but may not reveal communications
-may not reveal source of evidence if confidential

(3) May retain evidence for a reasonable time to prepare his client's case

(4) Rules change in "ex parte" proceedings b/c opposing counsel is not present

(5) Prosecutors special duty
-timely disclose evidence favorable to the defense

Front 64

Duty to state the law truthfully

Back 64

(1) No knowingly false statement of law
(2) Must cite to adverse authority, if controlling and directly on point

Front 65

Duty to uphold the law

Back 65

(1) No representation if it would require you to commit or assist in committing a crime

(2) Disclosure to prevent death serious bodily injury:
-ABA: allowed if reasonably likely to result
-CA: requires the act to be criminal as well

(3) Disclosure to prevent substantial financial injury:
-ABA: permits if your services were employed in the crime
-CA: forbids L from revealing

Front 66

General duty of fairness

Back 66

L has a duty to behave honestly in all dealings, whether or not engaged in the practice of law.

When there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession.

NOTE:
Default Rule

Front 67

Communication with a party represented by counsel

Back 67

CA:
-NO communication with a party represented by counsel on the subject of your inquiry
-UNLESS: (i) authorized by law; or (ii) consent of opposing counsel

ABA:
Extends this to all "persons" represented by counsel

Front 68

Communications with EEs of an entity represented by counsel

Back 68

ABA
-Consent Required for officer, director or managing agent


CA
-Consent required for any EE who can make a vicarious admission
-This includes, but is not limited to, O,D,MA (above)

NOTE
Consent is NOT required to speak with former EEs

Front 69

Communications with the press

Back 69

(1) May NOT interfere with a ∆'s right to a fair trial.
-avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case

(2) Exception
-matters in the public record or routine booking information
-warning the public
-informing the public of an ongoing investigation or asking for help
-statements required to protect your client from substantial undue prejudice from recent publicity not self initiated

(3) Prosecutors
-Must not make comments that have a substantial likelihood of heightening public condemnation of the accused
-Duty to seek justice, not just to win cases
-Must have probably cause to pursue a case

Front 70

Prosecutors

Back 70

Prosecutors have heightened duties:
(1) Must not make comments that have a substantial likelihood of heightening public condemnation of the accused

(2) Duty to seek justice, not just to win cases

(3) Must have probably cause to pursue a case

(4) Must disclose any evidence relevant to ∆'s defense

Front 71

Duty to preserve the impartiality and decorum of the tribunal

Back 71

(1) Don't try to influence anybody improperly
-Before and during trial you must not talk to any prospective or empanelled Juror
-After trial is over, if local law permits, you may interview jurors so long as you do not harass them or influence their future jury service

(2) No "chicanery": Trickery, especially by lawyers and politicians!

(3) Refrain from abusive or obstreperous conduct, belligerence, or theatrics

Front 72

Duty to expedite cases

Back 72

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

ABA
L has an affirmative duty to expedite cases

Front 73

Duty not to assist in the unauthorized practice of law

Back 73

A "lawyer" must not engage in the unauthorized - or unlicensed - practice of law to safeguard the public from incompetence.

NOTE:
Practice in a state while suspended or in which you are not admitted is a violation unless allowed by law, a "pro hac vice" order by the local court, or under limited exceptions.

Front 74

Out-of-state lawyers allowed to practice if...

Back 74

CA:
(1) Registered legal services attorneys; OR
(2) Registered in-house counsel for an institution (no individual representation or court appearances); OR
(3) Litigating and Non-litigating attorneys practicing temporarily in the state.
(*) register with the CA Bar, pay dues, satisfy CLE requirements, and be subject to CA ethics rules

ABA:
(1) temporary practice by an out-of-state lawyer in good standing if
(i) the lawyer associates with an locally admitted lawyer who actively participates in the matter;
(ii) the services relate to ADR; or
(iii) the matter arises out of matters reasonably related to the lawyer's practice in a state where she is admitted and are not services where the forum requires a pro hac vice appearance.

Front 75

Duty to report misconduct

Back 75

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

CA
-Does not require the reporting of others.
-Self reporting required
-L can be disciplined for merely knowing about a fellow firm member's disciplinary violation but doing nothing to prevent it.

Front 76

Duties of subordinates

Will a subordinate attorney be responsible for following superior attorney's orders?

Back 76

(1) YES if it is a clear violation: You are subject to discipline

(2) NO if it is a debatable problem: The partner is solely responsible

(3) Supervising partner responsible if ratified the action or knew of the conduct and failed to take action

(4) Managing partners must also make reasonable efforts to ensure that everyone's conduct in a firm comports with the professional obligations of a lawyer, including non-lawyer assistance

Front 77

How to begin an essay...

Back 77

In interactions with clients, an attorney owes a client four overarching duties: the duty of
confidentiality, the duty of loyalty, the duty of maintaining financial integrity, and the duty
of competence. In the practice of law, a lawyer also owes a duty of decorum and fairness to the profession. With these general principles in mind, each action will be analyzed individually.