Competence (MR and CA)
MR: An affirmative duty to utilize the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
CA: Lawyer can be liable for gross negligence in failing to perform legal services with competence.
Vicarious Liability (MR and CA)
A partner is responsible for associate’s work and must ensure that everyone complies with ethical rules.
CA: If one member of a firm commits an ethical violation, other members of the firm can be disciplined if they approved it or knew about it and did nothing to stop it.
Solicitation
Attorney-initiated contact with a specific individual regarding a potential legal problem that is designed to entice the layperson to hire the lawyer.
Division of Fees among Lawyers (Model Rules and CA)
MR: Consent must be in writing and signed by client. Fee splits must be in proportion to work done or responsibility imposed on each lawyer.
CA: Consent must be in writing and signed by client. Total fees not increased solely by reason of the division of fees.
Referral Fees (Model Rules and CA)
MR: Prohibit referral fees but do allow reciprocal referral arrangements from lawyers or non-lawyers as long as they are without a fee, are not exclusive and clients are informed of the existence and nature of the arrangement.
CA: Permits referral fees as long as lawyers enter into a written agreement to divide the fee and the client has consented in writing either at the time the lawyers enter into the agreement or shortly thereafter.
Actual Conflict (MR)
Actual Conflict exists if the representation of one client will be directly adverse to another client; or there is a significant risk that the representation of one o rmore clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Four Elements which allow a Lawyer to represent a client with an actual conflict.
- Lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client.
- Representation is not prohibited by law.
- The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.
- CA Only: Each client gives informed consent in writing in writing.
Potential Conflict (MR)
The attorney can take the case if she fully discloses the potential conflict to the client. Both MR and CA require the disclosure to be in writing.
Waiver of Conflict (Majority and CA)
Majority: Client can waive conflict if lawyer has reasonable belief that the client will not be adversely affected by the representation. However, when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer can neither ask for consent nor provide representation based on the client’s consent.
CA: Requires written notice to the client of the potential conflict and written waiver.
Gifts via Estate Planning Document (Majority and CA)
Majority: Lawyer cannot draft a document that will give themselves a gift unless it is for a family member.
CA: Law can draft the document but cannot induce the gift.
Loans vs. Interest Free Advances (Majority and CA)
Loans:
Majority: If “advance” is a loan, it is illegal.
CA: After a lawyer is retained, a lawyer may agree to lend money to the client based on the client’s written promise to repay the loan, provided there is no violation of other rules.
Advances:
Majority and CA: If advance is simply costs and fees for litigation expenses, it is acceptable. Repayment can be contingent on a positive outcome.
Reporting Ethical Violations: General Rule
A lawyer who knows that another lawyer (or judge) has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate authority, unless the information is privileged.
Diligence and Promptness (MR and CA)
MR: A lawyer shall act with reasonable diligence and promptness in representing a client.
CA: A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client. Reasonable diligence means that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
Prosecutor’s Role (MR and CA)
MR: Minister of justice as well as advocate for the government.
- Must personally believe there is a likelihood of guilt and that belief must be reasonable.
- Make reasonable efforts to assure that the accused has been advised of the right to counsel.
- Refrain from getting waiver of pretrial rights from an unrepresented defendant.
- Make timely disclosure of evidence that tends to negate the guilt of the accused or mitigates the offense.
- Exercise reasonable care to prevent investigators, law enforcement personnel, etc. from making improper extrajudicial statements.
- Do not subpoena lawyer for testimony unless there is no alternative, the information is not protected and judicial approval is given.
- Refrain from making extrajudicial comments that have a substantial likelihood of heighten public condemnation of the accused.
CA: Rules similar
Advertising
A lawyer’s communication with the public at large or a segment of the public regarding availability of legal services. Cannot be false or misleading.
Contingent Fee Agreements (MR and CA)
MR and CA: Must be in writing and explained and signed by client.
CA: Agreement must state the lawyer’s percentage is not set by law and can be negotiated and it must state how the client will be charged for work not covered by the contingency.
Ethical Duty of Confidentially (MR and CA)
MR: A lawyer shall not reveal confidential client information that was learned during the course of the representation.
CA: Duty of confidentiality arises from the attorney’s oath, in which the attorney promises “to maintain inviolate the confidences, and at every peril to himself or herself to preserve the secrets, of his or her client.”
Six exceptions to disclosure of confidential information by lawyer (Model Rule) and Four Exceptions for California
MR:
- Client consents or disclosure is impliedly authorized in order to carry out the representation.
- Necessary to prevent criminal acts that the lawyer believes will result in death or substantial bodily harm.
- Necessary to prevent or rectify substantial financial loss resulting.
- Lawyer reasonably believes disclosure is necessary regarding a dispute between the lawyer and the client.
- Disclosure required by court, ethic rules or law; or
- Disclosure to obtain legal ethics advice.
CA:
- Lawyer reasonably believes disclosure is necessary to prevent a criminal act that the lawyer believes will result in death or substantial bodily injury (lawyer must make a good faith effort to convince the client not to commit the criminal act and if the client refuses, the lawyer must inform the client of his intention to reveal the client confidences),
- Disclosure required by law or court order;
- To collect attorney fees or;
- To defend against a claim of legal malpractice, ineffective assistance of counsel or other wrongdoing by the attorney.
Effect of Sale of Law Practice (MR and CA)
MR: Entire practice or area of practice must be sold.
CA: Allows “all or substantially” all of the law practice of a lawyer to be sold subject to conditions.
- -Notice to clients must state that the interest is being transferred to purchaser; that the client has teh right to retain other counsel; that the client may take possession of client materials and property;
- -CA does not require that seller cease practice in the area unless there is a non-compete clause and allows seller to keep a few clients who pose a conflict of personal interest for the purchaser or who have a long relationship with the seller.
Threatening Criminal/Disciplinary Charges (MR and CA)
MR: Prohibited
CA: Cannot make threats in order to gain advantage in civil dispute.
Publicity (General Rule) along with seven things that the lawyer can say.
Lawyers must not make extrajudicial statements likely to prejudice the proceedings.
Seven things lawyers can say during publicity:
- General nature of claim or defense;
- Information in public record;
- Investigation in progress;
- Result of any step in litigation;
- Request for assistance re evidence or information;
- Warning about person if dangerous; or
- Rebut what opposing side says.
Six reasons for Permissive Withdrawal
- Client persists in a course of action involving the lawyer’s services that lawyer reasonably believes is criminal or fraudulent;
- Client has used the lawyer’s services to perpetrate a crime or fraud;
- Client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;
- Client fails substantially to fulfill an obligation to the lawyer regarding lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.
- Representation will result in an unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client; or
- Other good cause for withdrawal as long as the withdrawal does not have a materially adverse affect on the client’s interests.
Three Procedural Requirements upon Withdrawal
- Reasonable notice to clients, including allowing them time for employment of other counsel;
- Promptly turn over files and property;
- Promptly refund unearned fees; and
