Professional Responsibility

Front 1

Duties Owed to Client

Back 1

Confidentiality
Loyalty
Financial Responsibility
Competence
And Other reasonable things

Front 2

Duties owed to Court/Adversary/Public/Profession/3rd Parties

Back 2

Candor
Fairness
Dignity
Other reasonable things

Front 3

Mnemonic for Duties Owed by Attorney

Back 3

Clients Love Fierce Counsel; Courts Feel Differently

Front 4

Duty of Confidentiality

Back 4

Rule: Atty cannot reveal anything "related to the representation" of a client without CONSENT.
"related" is interpreted broadly - not just confidential communications
Duty can attach before atty-client relationship is formed and continues indefinitely
Source of the info is irrelevant.

Front 5

Exceptions to Duty of Confidentiality

Back 5

Consent
Intent to Commit death or substantial bodily harm
Intent to commit fraud or financial crime (not in CA)
Use by atty to defend himself
Compelled

Front 6

Exception to Confidentiality: CONSENT

Back 6

(1) must be after consultation; and (2) may be implied when necessary to render legal services

Front 7

Exception to Confidentiality:
INTENT TO CAUSE DEATH OR SUBSTANTIAL BODILY HARM

Back 7

Atty MAY reveal confidential info if
(1) atty reasonably believes that
(2) disclosure is NECESSARY to PREVENT
(3) reasonably certain death or substantial bodily harm
CA: must (1) make good faith effort to talk client out of committing act and (2) inform client of decision to reveal confidences

Front 8

Exception to Confidentiality: FRAUD OR FINANCIAL CRIME

Back 8

MAY reveal info if
(1) client used or is using atty's services to commit crime AND
(2)disclosure would prevent or mitigate substantial financial loss

Front 9

Exception to Confidentiality: ATTY DEFENSE TO MALPRACTICE

Back 9

Atty can reveal confidential info that is (1) NECESSARY to establish (2) a PERSONAL CLAIM OR DEFENSE

Front 10

Exception to Confidentiality: COMPELLED

Back 10

May be compelled by (1) law (2) controlling ethical duties; or (3) final court order

Front 11

Duty of Loyalty to the Client

Back 11

Rule: If a concurrent interest of the atty, another client, or a third party MATERIALLY LIMITS or is DIRECTLY ADVERSE to loyal representation, atty must not take on the representation unless (1) objective and reasonable belief that he can represent everyone effectively (CA doesn't require belief to be reasonable); (2) he informs each affected client (if must breach confidentiality to inform, consent is not possible); (3) the clients consent in writing (CA doesn't require consent if conflict is personal...just written disclosure); and (4) the consent is REASONABLE...may require written advice to client to consult outside counsel

Front 12

Duty of Loyalty Acronym

Back 12

RICE
Reasonable to consent
Informs each client
Consent in Writing
Effective representation

Front 13

Imputed Disqualification

Back 13

Attorneys that work closely together are treated as a unit
exception: (1) when conflict arises from previous govt service or (2) purely personal interests (and can set up an ethical wall)

Front 14

Is there imputed disqualification if the lawyer leaves the firm?

Back 14

Yes, if (1) the matters are substantially related and (2) any remaning lawyer has material confidential information

Front 15

Remedies for for Conflict of a Duty of Loyalty

Back 15

1) refuse the case
2) advise clients to get separate counsel
3) withdraw

Front 16

Conflicts between lawyer and client: Interest in Subject Matter of Litigation

Back 16

lawyer should not acquire a propriety interest in the action except a lien on property to secure payment of fees and work on contingent fee basis

Front 17

Conflicts between Lawyer and Client:
BUSINESS ACTIONS

Back 17

Lawyer may enter into business with a client only if:
(1) terms are Fair to the client
(2) terms are fully Disclosed to the client
3) client has an opportunity to consult Outside counsel; and
4) client provides written Consent
First Discuss Over Coffee

Front 18

Conflicts between Lawyer and Client:
Publication Rights Contracts

Back 18

ABA: must wait until representation ends
CA: will uphold K only if client clearly understands and consents

Front 19

Conflicts b/t Lawyer and Client:
Loans/Advances to Client

Back 19

ABA: No financial assistance to client permitted EXCEPT for: (1) advancing court costs and litigation expenses in contingent fee case; and (2) atty may pay court costs and litigation expenses on behalf of INDIGENT client
CA: Prohibits the promise of paying prospective client's debts to gain his business; but loans are allowed in all matters (incl non-litigation matters) for any purpose after atty is hired IF THERE'S A WRITTEN IOU

Front 20

Conflicts b/t Lawyer and Client:
LIMITATIONS ON MALPRACTICE LIABILITY

Back 20

1) lawyer can't proscriptively limit malpractice liability
2) settlement of malpractice claim requires WRITTEN ADVICE to client to consult outside counsel

Front 21

Use of Former client's Information Relating to the Representation

Back 21

Violates (1) duty of confidentiality and (2) duty of loyalty

Front 22

Gifts to lawyer (or his family)

Back 22

ABA: atty must not (1) solicit a substantial gift from a client or (2) draft a legal instrument for a client who is not your relative if it provides a substantial gift to atty (or atty's relative)
CA: Atty is only prohibited from INDUCING the gift

Front 23

Close relationships with other lawyers in the same matter

Back 23

atty cannot oppose a party represented by her relatie without informed client consent
CA: extends the rule to any intimate relationship

Front 24

Lawyer as a necessary witness

Back 24

general rule: atty cannot serve as trial counsel if he's likely to be a necessary witness
exceptions: (1) testimony is on an uncontested matter (2) or relates only to nature and value of legal services rendered to client (3) or withdrawal of atty for the purpose of testifying would result in substantial hardship to client bc atty adds distinctive value to the case (#3 inapplicable in CA)
CA - trial counsel is prohibited from testifying as a witness only if before a JURY (but exceptions #1 and #2 apply even to jury trials in CA) AND also allows testimony before jury if client consents in writing

Front 25

Conflicts Among Clients

Back 25

Generally: atty can represent clients having POTENTIAL clients when they reasonably consent, but not when they have ACTUAL conflicts

Front 26

Clients on Opposite Sides of the Same Matter

Back 26

It is never reasonable to assert a claim by one client against another client in the same matter (consent cannot undo this)

Front 27

Opposing current client in another pending matter

Back 27

Impermissible unless you have the REASONABLE CONSENT of both clients
CA: allows an atty to represent a policyholder and his insurance provider where the insurer's interest is only as an indemnity provider

Front 28

Conflicts Stemming from Prospective Clients

Back 28

Atty may not represent a client with interests adverse to a prospective client in the same or substantially related matter if he has rec'd info from prospective client that could substantially harm prospective client UNLESS: (i) written confirmation of informed consent from both client and prospective client OR (ii) disqualified atty is timely screened and does not share the fee
CA: client is defined as someone who consults with atty, whether or not atty-client relationship results

Front 29

Advertising: California rule about vulnerable clients

Back 29

In California, communications that are delivered to a potential client in a time of physical or mental stress, or that are delivered at an accident scene, hospital, or health care center, are presumed to be false and misleading unless the lawyer can prove otherwise.

Front 30

What is the "practice of law"?

Back 30

Engaging in activities that call for the professional judgment of a lawyer.

Front 31

Ads in General

Back 31

Traditionally, professional ethics rules banned lawyer advertising However, the Supreme Court recognized lawyer advertising as commercial speech protected by the First and Fourteenth Amendments and held that a state may not flatly prohibit lawyer advertising unless it is false or misleading.
Commercial speech may be limited by regs that (i) serve a substantial govt interest; (ii) directly and materially advance that interest; and (iii) are narrowly tailored to serve the substantial interest.

Front 32

Direct Mail Advertising

Back 32

Although a lawyer must not seek fee-paying work by initiating a personal or live telephone contact, a lawyer is not prohibited from sending truthful, nondeceptive letters to persons KNOWN TO FACE A SPECIFIC LEGAL PROBLEM.
But attys CANNOT send letters to persons they KNOW do not wish to communicate with the attys.
Mailings seeking fee-paying work must be clearly labeled as advertisements.

Front 33

Solicitation

Back 33

A lawyer must not seek fee paying work by initiating live or telephone contact with a prospective client who is not a lawyer and with whom the lawyer has no personal, family, or prior professional relationship.

Front 34

California Presumed False/Misleading Ads

Back 34

i) communications delivered to a potential client who is in the hospital or who is suffering from physical or mental stress;
ii) mailings that seek fee-paying work and that are not clearly labeled as ads;
iii) communications containing testimonials or endorsements without a disclaimer that the testimonials/endorsements are not a promise about the results in the potential client's case.

Front 35

CA Statutory Restrictions on Adds

Back 35

CA lawyer can't make ads that contain:
i) a guarantee or warranty of the outcome of a case;
ii) words/symbols that suggest quick cash or a quick settlement;
iii) an impersonation of a lawyer/client without disclosing that it's an impersonation;
iv) a dramatization of an event w/o disclosing that it's a dramatization; and
v) a contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that is the arrangement.