1
Q
Assist elements.
A
- knowingly
- assisting or inducing
- another in violating or attempting to violate the RPCs
2
Q
Attempt elements
A
- Attempting
- To violate the RPC
3
Q
Using elements
A
- Using
- the acts of another
- to violate the RPC
4
Q
Criminal act violation elements
A
- Committing a criminal act
- that reflects adversely on the lawyer’s honesty, trustworthiness, or
fitness as a lawyer in other respects
5
Q
Stating improper influence violation elements
A
- Stating or implying
- an ability to improperly influence a government agency or official or achieve results by illegal or unethical means
6
Q
Dishonesty elements
A
- Engaging in conduct
- involving dishonesty, fraud, deceit, or misrepresentation.
7
Q
Prejudicing administration of justice elements
A
- Engaging in conduct
- prejudicial to the administration of justice
8
Q
Assisting a judicial conduct violation elements
A
- Knowingly
- assisting
- a judge or judicial officer
- in violating rules of judicial conduct or
other law
9
Q
Harassment/discrimination elements
A
- Engaging in
- Unlawful (CALIFORNIA only)
- harassment or discrimination in conduct
- related to the practice of law
- on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status, or socioeconomic status.
10
Q
Permitting discrimination elements
A
ABA: not a violation
Cal:
1. permitting
2. unlawful
3. discrimination
4. in relation to a law firm’s operations
11
Q
Failure to notify of other harassment/discrimination proceedings elements
A
ABA: not a violation
Cal:
1. lawyer is a subject of a disciplinary proceeding
2. alleging a harassment/discrimination rule violation
3. failed to promptly notify the State Bar of a criminal, civil, or administrative action premised on the same conduct.
12
Q
Improper representation scope limitation elements
A
-unreasonable
-informed consent lacking
13
Q
Failing to abide by client’s decision elements
A
- Client made a decision
- On whether to settle or not, plead guilty or not, waive a criminal jury trial or not, testify in a criminal case or not
- lawyer didn’t abide by that decision
14
Q
Client assist elements
A
- counseling or assisting
- a client
- in conduct
- that the lawyer knows is criminal or fraudulent (or, in CALIFORNIA, violates a court rule or writing)
15
Q
What is a client?
A
Someone with whom a lawyer has a lawyer-client relationship?
16
Q
How is a lawyer-client relationship created?
A
-express creation
-implied creation
-court appointment
17
Q
Implied lawyer-client relationship creation elements
A
- a person seeks legal advice or services
- from a lawyer
- in the lawyer’s professional capacity
- the lawyer fails to make clear that he does not want to undertake the representation
- the lawyer knows or should know that the prospective client is reasonably relying on the lawyer to provide the services
18
Q
Failing to inform about conflict of law elements
A
ABA: doesn’t exist
Cal:
1. A lawyer counsels a client
2. to rely upon a California law
3. that the lawyer knows conflicts with a federal or tribal law
4. the lawyer doesn’t inform the client about that conflict
19
Q
Failure to decline/withdraw elements
A
WAY ONE:
1. a client insists on illegal or unethical assistance
2. the lawyer doesn’t withdraw from representation
WAY TWO:
1. a lawyer discovers that a client is using the lawyer’s services to commit a crime or fraud
2. the lawyer doesn’t withdraw
WAY THREE:
1. The representation will result in violation of the RPC or other law
2. the lawyer doesn’t decline or withdraw
WAY FOUR:
1. the lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client
2. the lawyer doesn’t decline or withdraw
WAY FIVE:
1. lawyer is discharged by the client
2. the lawyer doesn’t withdraw
WAY SIX:
1. a conflict becomes apparent
2. after representation has commenced
3. informed consent of the affected client(s) will not solve the problem
4. the lawyer doesn’t withdraw
WAY SEVEN:
1. a conflict of interest is apparent
2. before a lawyer takes on a client’s matter
3. the lawyer fails to address the conflict (if possible) AND must takes on the matter
20
Q
Failing to maintain a normal lawyer-client relationship with a diminished capacity client
A
ABA:
1. a client’s capacity to make adequately considered decisions
2. in connection with the representation
3. is diminished
4. the lawyer fails to, as far as reasonably possible, maintain a normal lawyer-client relationship with the client
Cal: doesn’t exist
21
Q
Failing to take protective action elements
A
ABA:
1. a client has diminished capacity
2. and faces a risk of substantial physical, financial, or other harm
3. the lawyer fails to take reasonable actions to protect the client
Cal: doesn’t exist
22
Q
Failing to communicate fees elements
A
ABA:
1. A lawyer
2. fails to communicate the basis or rate of the fee and the expenses for which the client will be responsible
3. before or within a reasonable time after commencing a representation
Cal: doesn’t exist
23
Q
To what is “Regularly Represented Client” a defense?
A
ABA: Failing to communicate fees
Cal: doesn’t exist
24
Q
Regularly represented client elements
A
ABA:
1. the lawyer regularly represents the client
2. and will be charging the same basis or rate as in other matters
Cal: doesn’t exist
25
Fee agreement enforceability condition beyond normal contract law
National: none
Cal: it is reasonably foreseeable that the total expense to the client (including legal fees) will exceed $1,000, the fee agreement must be in writing to be enforceable.
Exceptions:
-corporate client
-written waiver
-The legal services are the same kind of services that the client has previously received and paid for
-The lawyer acted in an emergency to protect the client’s rights
-A writing is impractical for other reasons.
26
Unreasonable fees elements
1. A lawyer
2. makes an agreement for, charges, or collects
3. an unreasonable (in CALIFORNIA, illegal or unconscionable instead) fee or an unreasonable amount for expenses
27
Failing to refund elements
1. A lawyer
2. requires her fee to be paid in advance, 3. she is fired or withdraws
4. she fails to refund any unearned part of the advance
28
Charging non-refundable fees elements
ABA: doesn't exist
Cal:
1. A lawyer
2. makes an agreement for, charges, or collects
3. a fee
4. that is denominated as “nonrefundable,” “earned on receipt,” or in similar terms
5. Neither is the fee a true retainer (paid solely to ensure the lawyer’s availability); nor did the client agree in writing after disclosure that she will not be entitled to any refund.
29
Unreasonable contingent fee use elements
ABA: no, except civil cases NOT domestic violence or divorce
California:
1. a lawyer
2. uses a contingent fee
3. when the facts of the case make it unreasonable to do so
NOTE: contingency fees in criminal, domestic violence, or divorce cases
30
Improperly disclosed contingent fee arrangement elements
-not in a writing signed by the client
-the writing didn't state how the fee is to be calculated, including the percentage that the lawyer will get if the
case is settled before trial, won after trial, or won after appeal;
-the writing didn't state what expenses are to be deducted from the recovery;
-the writing didn't state whether deductions for expenses will be made before or after the contingent fee is
calculated;
-the writing didn't state what expenses the client must pay, whether or not she wins the case
-the writing didn't state that the lawyer’s percentage is not set by law and can be negotiated between the lawyer and client (CALIFORNIA only)
-the writing didn't state how the client will be charged for work not covered by the contingency (CALIFORNIA only)
-at the end of a contingent fee case, the lawyer failed to give the client a written statement showing the outcome of the case, the remittance to the client, and how the remittance was calculated
Note: in california this isn't an ethics violation, it just allows the client to void the agreement, in which case the lawyer is entitled to collect a reasonable fee for services rendered
31
Improper bill pooling elements
1. two or more lawyers
2. from different firms
3. work together on a case
4. The lawyers submit a single bill to the client
5. and then split it
6. The total fee is unreasonable
OR the split was not in proportion to the services performed by each lawyer and each lawyer did not assume joint responsibility for the matter (this one is NOT a possibility in CALIFORNIA),
OR the client did not agree to the split in a writing that disclosed the share each lawyer will receive
OR the total fee charged by all lawyers was increased solely by reason of the agreement to divide fees (CALIFORNIA ONLY)
32
Failing to comply with mandatory fee resolution proceedings
1. A lawyer
2. fails to comply with a mandatory procedure
3. for resolving fee disputes
33
Improper withdrawal elements
1. A lawyer
2. Withdraws
3. When ordered not to do so OR when one of the following situations is NOT present:
-it would be an RPC violation to NOT withdraw
-the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent
-The client has used the lawyer’s services to perpetrate a crime or fraud
-The client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services (e.g., paying bills) and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled
-The representation has been rendered unreasonably difficult by the client
-A client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement (not in CALIFORNIA)
-The representation will result in an unreasonable financial burden on the lawyer (not in CALIFORNIA)
-Withdrawal can be accomplished without material adverse effect on the interests of the client (not in CALIFORNIA)
-Other good cause for withdrawal exists
-the client knowingly and freely assents to termination of representation (CALIFORNIA ONLY)
-A continuation of the representation is likely to result in a violation of the Cal. RPC or State Bar Act (CALIFORNIA ONLY)
-The lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively (CALIFORNIA ONLY)
-The client insists on presenting a frivolous claim or defense, or taking a frivolous position, or making a frivolous demand in a nonlitigation matter (CALIFORNIA ONLY)
-The lawyer’s inability to work with co counsel indicates that the best interests of the client likely will be served by withdrawal (CALIFORNIA ONLY)
34
Failing to protect client's interests upon representation termination elements
Upon termination of representation, a lawyer fails to take steps to the extent reasonably practicable to protect a client’s interests
35
Failing to retain convicted client's files elements
ABA: doesn't exist
Cal:
1. criminal case
2. involving a serious or violent felony
3. where the client has been sentenced to at least 15 years in prison,
4. trial counsel
5. fails to retain a copy of the former client’s files
6. for the term of the client’s imprisonment
36
Confidentiality duty breach elements
1. a lawyer
2. voluntarily
3. reveals information
4. relating to the representation of a client
37
Confidentiality duty breach defenses
-consent
-disclosure is impliedly authorized in order to carry out the representation
-death or substantial bodily harm
-crime or fraud (not in CALIFORNIA)
-compliance with court order or other law
-establishing a claim or defense
-obtaining confidential legal advice about the lawyer’s personal duty to comply with legal ethics rules (not in CALIFORNIA)
-detecting and resolving conflicts of interest (not in CALIFORNIA)
38
Failing to act competently to preserve confidentiality elements
1. A lawyer
2. fails to make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to a client’s representation
39
Death or substantial bodily harm defense elements
1. she reasonably believes disclosure necessary
2. to prevent reasonably certain death or substantial bodily harm
3. that is also a criminal act (CALIFORNIA ONLY)
4. (if reasonable under the circumstances) she made a good faith effort to persuade the client: (1) not to commit or continue the criminal act (if the client is the one who will be committing the crime) and/or (2) to pursue a course of conduct that will prevent the threatened death or substantial bodily harm (CALIFORNIA ONLY)
5. The lawyer informs the client of the lawyer’s ability or decision to reveal the client’s information (CALIFORNIA ONLY)
40
crime/fraud defense elements
ABA:
1. she reasonably believes disclosure necessary
2. to prevent the client from committing a crime or fraud
3. that is reasonably certain to cause substantial financial loss to a person
4. the client is using or has used the lawyer’s services to commit the crime or fraud, or necessary to rectify or mitigate the financial loss
Cal: doesn't exist
41
compliance with a court order or other law defense
1. she reasonably believes disclosure necessary
2. to comply with a court order or other law
42
Establishing a claim or defense defense elements
1. the lawyer reasonably believes disclosure necessary
2. to establish a claim or defense
3. on behalf of the lawyer
4. in a controversy
5. between the lawyer and the client
6. to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client
43
Obtaining confidential ethics advice defense elements
ABA:
1. she reasonably believes disclosure necessary
2. to obtain confidential legal advice
3. about the lawyer’s personal duty to comply with legal ethics rules
Cal: doesn't exist
44
Detecting and resolving conflicts of interest defense elements
ABA:
1. she reasonably believes disclosure necessary
2. to detect and resolve conflicts of interest
3. arising from her change of employment or from changes in a law firm’s composition or ownership
Cal: doesn't exist
45
Failing to separate funds elements
1. a lawyer receives money
2. in connection with a representation (CALIFORNIA: or for the benefit of a third person to whom the lawyer owes a legal duty)
3. fails to promptly place it in a client trust account,
4. separate from the lawyer’s own personal and business accounts
5. maintained in California, or, with the client’s written consent, in a different jurisdiction with which the client has a substantial relationship
46
To what are Bank Service Charges a defense?
Failing to properly separate funds
47
Bank service charges elements
1. a lawyer may put some of her own money into a client trust account
2. for the sole purpose of paying bank service charges
48
Misappropriation of client advances
1. a client entrusts the lawyer with an advance
2. against legal fees
3. that the lawyer has not yet earned, or against costs and expenses not yet incurred
4. Lawyer does not put the advance must into the client trust account OR withdraws it from that account for other than fees earned or expenses incurred
49
To what is Flat Fee a defense?
ABA: nothing
Cal: Misappropriation of client advances
50
Flat fee defense to client funds misappropriation elements
ABA: doesn't exist
Cal:
1. a flat fee
2. deposited into the firm’s operating account
3. the lawyer discloses to the client in writing that
4. the client has a right to require that the flat fee be deposited in a client trust account until the fee is earned; and
5. The client is entitled to a refund of any unearned amount if the representation is terminated or the services are not rendered.
6. Additionally, if the flat fee exceeds $1,000, the client’s agreement and the disclosures above must be set forth in a writing signed by the client
51
Failure to notify of receipt of funds elements
1. a lawyer receives funds, securities, or other property
2. in which a client or third person has an interest,
3. the lawyer fails to promptly notify the client or third person
52
Failure to safekeep elements
1. a lawyer receives securities or other property in which a client or third person has an interest
2. the lawyer fails to identify them or label them, upon receipt, or fails to place them in a safe deposit box or other place of safekeeping as soon as practicable
53
Failure to deliver elements
1. a lawyer
2. fails to promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive
3. upon request by the client or third person
54
Failure to promptly render a full accounting elements
1. a lawyer
2. fails to promptly render a full accounting regarding funds or other property
3. that the client or third person is entitled to receive
4. upon request by the client or third person
55
Failure to promptly distribute elements
1. a lawyer
2. fails to promptly distribute all portions of property
3. that another claims interest in
4. that interest is not in dispute
56
Failure to separate disputed property elements
1. a lawyer
2. possesses property
3. in which at least two persons (one of whom may be the lawyer) claim interests
4. the lawyer fails to keep separate the disputed portion
5. until resolution of the dispute
57
Failure to keep a record elements
1. a lawyer fails to keep complete records of client account funds and other property
2. for a period of at least five years
3. after final distribution of the property
58
Conflict of Interest
TWO WAYS:
WAY ONE:
The representation of the client will be directly adverse to another client who the lawyer represents in the same or a separate matter
WAY TWO:
There is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person
59
What is necessary for informed consent to defeat a conflict of interest?
1. The lawyer reasonably believes that she can competently and diligently represent each affected client, despite the conflict of interest
2. The representation is not prohibited by law
3. The representation does not involve asserting a claim by one client against another client represented by that lawyer in the same litigation (or other proceeding before a tribunal)— meaning, the lawyer cannot be on both sides of the same proceeding before a tribunal
4. CALIFORNIA: the lawyer fully discloses the situation to the client in writing
5. Each affected client gives informed consent, confirmed in writing. “Confirmed in writing” means either of two things: (a) the client executes a writing, or (b) the lawyer promptly records and transmits a confirmatory writing to the client after the client orally consents to the conflict. “Writing” includes electronic transmissions (e.g., e-mail)
60
Defenses to conflict of interest
-informed consent
-waiver as to future conflicts
61
Waiver as to future conflicts elements
1. a client consents to conflicts that may arise in the future
2. in a waiver that is comprehensive and specific
62
Incompetence elements
ABA:
1. When representing a client,
2. a lawyer
3. fails to act competently; that is, with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
Cal: doesn't exist
63
Lack of diligence elements
ABA:
1. A lawyer
2. fails to act with reasonable diligence
3. in representing a client
Cal: doesn't exist
64
lack of diligence or competence elements
ABA: doesn't exist
Cal:
1. a lawyer
2. intentionally, recklessly, repeatedly, or with gross negligence
3. fails to perform legal services
4. with reasonable competence or diligence
5. not a minor, isolated act
65
Failure to explain matter to client elements
1. A lawyer
2. fails to explain a matter
3. to the extent reasonably necessary to permit the client to make informed decisions regarding the representation
66
Failing to disclose lack of professional liability insurance to client elements
ABA: doesn't exist
Cal, TWO WAYS:
WAY ONE:
1. a lawyer
2. does not have professional liability insurance
3. fails to inform the client
4. in writing
5. at the time of engagement
WAY TWO:
1. a lawyer
3. ceases to have professional
liability insurance
3. during the representation
4. fails to inform the client
5. within 30 days
67
Defenses to failing to disclose lack of professional liability insurance to client
-The representation will not exceed four hours (if it subsequently exceeds four hours, the disclosure must be made).
-The lawyer is acting in the course of his direct employment with a government agency or as in-house counsel
-The lawyer is rendering legal services in an emergency to avoid foreseeable prejudice to the client’s rights or interests
68
Failing to inform client elements
TWO WAYS:
WAY ONE:
1. A lawyer
2. fails to keep a client reasonably informed
3. about the status of the matter
WAY TWO:
1. a lawyer
2. fails to promptly inform the client of a decision or circumstance
3. that requires the client’s informed consent
69
Failing to comply with client request for information elements
1. a lawyer
2. fails to promptly comply with a client’s reasonable request
3. for information
70
Failing to communicate plea bargain or settlement offer elements
ABA: doesn't exist although likely subsumed by more general rules
Cal:
1. a lawyer
2. fails to promptly communicate to a client, regardless of the circumstances:
3. In a criminal case, all terms and conditions of a proposed plea bargain or other dispositive offer; OR In all other matters, all amounts, terms, and conditions of any written offer of settlement made to the client
71
Failing to consult or explain regarding illegal or unethical conduct elements
1. the client
2. expects the lawyer to do something that is either illegal or unethical
3. the lawyer
4. fails to consult with the client and explain why she cannot do what the client wants
72
Withholding information elements
1. a lawyer
2. withholds information
3. to serve the lawyer’s or a third person’s interest or convenience
73
Delaying information elements
1. A lawyer
2. delays the transmission of information
3. to a client
4. the client would NOT have been likely to react imprudently to an immediate communication (CALIFORNIA: the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others)
74
Defense to withholding/delaying information
1. A protective order, nondisclosure agreement, or law forbids a lawyer from sharing certain information with a client,
2. the lawyer must comply with such a rule or order
75
Failing to act as an advisor elements
1. When acting as advisor
2. to a client
3. a lawyer
4. fails to exercise independent judgment or fails to render candid advice
76
Improper evaluation for use by third party elements
ABA:
1. A lawyer
2. evaluates a client’s affairs
3. for the use of a third person
4. the lawyer does NOT reasonably believe that making the evaluation is compatible with the lawyer’s other responsibilities to the client, OR the lawyer knows or should know that the evaluation will materially harm the client and didn't obtain the client’s informed consent before making the evaluation
Cal: doesn't exist
77
Improper service as a third-party neutral elements
1. a lawyer
2. NOT acting as a temporary judge, referee, or court-appointed arbitrator (CALIFORNIA ONLY)
2. serves as a third-party neutral
3. fails to inform unrepresented parties that the lawyer is not representing them
78
Frivolous claim/contention elements
1. A lawyer
2. serving as an advocate
3. in a legal proceeding
4. takes a position
5. without a basis in law and fact
6. and that is frivolous
79
Failing to expedite litigation elements
ABA:
1. A lawyer
2. fails to make reasonable efforts to expedite litigation
3. consistent with the interests of the client
Cal:
1. a lawyer
2. uses means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense
80
false legal statements elements
1. A lawyer
2. knowingly makes a false statement of law to the court, or fails to correct a previously made false statement of material law (or, in CALIFORNIA, knowingly misquotes to a tribunal the language of a book, statute, decision, or other authority)
81
Failing to disclose controlling authority elements
1. A lawyer
2. knowingly
3. fails to disclose to the court
4. a legal authority
5. in the controlling jurisdiction
6. that is directly adverse to the client’s position
7. and that has not been disclosed
8. by the opposing counsel
82
Lack of candor about case facts elements
TWO WAYS:
ONE WAY:
1. A lawyer
2. knowingly
3. makes a false statement
4. of fact
5. to the court,
WAY TWO:
1. A lawyer
2. fails to correct a previously made false statement
3. material fact
83
Using false facts elements
1. a lawyer
2. offers evidence
3. that the lawyer knows is false
84
Failing to volunteer facts elements
1. a lawyer
2. in an ex parte proceeding
3. fails to inform the tribunal
4. of a material fact
5. known to the lawyer
6. that will help the tribunal make an informed decision
85
Failing to take remedial measures elements
1. a lawyer
2. has offered a piece of evidence and
3. later discovers that it is false
4. she fails to take reasonable remedial measures
86
What are false evidence "reasonable remedial measures"
1. the lawyer must speak confidentially with the client, urging the client’s cooperation in withdrawing or correcting the false evidence
2. if the client will not cooperate, the lawyer should consider asking the court’s permission to withdraw. The lawyer should also move to strike the false evidence or take other steps to cancel out its effect
3. if withdrawal is not permitted or will not solve the problem, the lawyer must disclose the situation to the judge
87
Obstructing evidence elements
1. A lawyer
2. unlawfully
3. obstructs another party’s access to evidence
88
Concealing evidence elements
1. a lawyer
2. unlawfully
3. alters, destroys, or conceals, or counsels or assists another in so doing, a document or other item
4. having evidentiary value
89
Suppressing evidence elements
ABA: doesn't exist
Cal:
1. a lawyer
2. suppresses evidence
3. that the lawyer or the lawyer’s client has a legal obligation to reveal or produce
90
Advising a person to secrete or flee elements
ABA: doesn't exist
Cal:
1. a lawyer
2. advises
3. a person
4. to secrete himself or to flee the jurisdiction
5. for the purpose of making that person unavailable as a witness
91
Falsifying evidence elements
1. A lawyer
2. falsifies evidence, or counsels or assists a witness to testify falsely
92
Paying witnesses elements
1. A lawyer
2. offers an inducement to a witness
3. that is prohibited by law
93
Violating court orders and rules elements
1. A lawyer
2. knowingly
3. violates a rule of procedure, a rule of evidence, a rule of court, or an
order made by the court
4. for a purpose other than making a good faith challenge to the validity of the rule or order
94
advising a person not to give information elements
ABA:
1. A lawyer
2. advises a person
3. to refrain from voluntarily giving information to an opponent or
other party,
4. EITHER (a) The person is NEITHER a client, NOR a relative, employee, or agent of a client; OR (b) The lawyer does not reasonably believes that the person’s interests will not be harmed by not volunteering the information
Cal: doesn't exist
95
Abusing discovery procedures elements
ABA:
1. A lawyer
2. makes a frivolous discovery request, or fails to make reasonable efforts to comply with a legally proper discovery request made by the adversary
Cal: doesn't exist
96
Using threats to gain advantage in a civil case elements
1. While representing a client in any civil dispute,
2. a lawyer
3. threatens to present criminal, administrative, or disciplinary charges
4. in order to gain an advantage for her client
97
Making prohibited trial statements elements
1. during trial
2. a lawyer
3. (a) Asserts personal knowledge of facts, (b) Refers to inadmissible material, OR (c) State a personal opinion about the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused (in CALIFORNIA this last part is only guilt or innocence)
98
Improper influence elements
1. A lawyer
2. seeks to influence a judge, court official, juror, or prospective juror
3. by improper means
99
Disruptive conduct elements
ABA:
1. A lawyer
2. engages in conduct
3. intended to disrupt a tribunal
Cal: doesn't exist
100
Unauthorized ex parte communication elements
1. a proceeding is pending
2. in a tribunal,
3. a lawyer has an ex parte communication
4. with a judge or court official
5. it was unauthorized by law or court order
101
Improper contact with jurors or prospective jurors
1. A lawyer
2. communicates with a juror or prospective juror (or, in CALIFORNIA, a family member thereof)
3. (a) the communication is prohibited by law; (b) the juror has made known a desire not to communicate; or (c) the communication involves misrepresentation, coercion, duress, or harassment
NOTE: communication with jurors or prospective jurors during trial is per se prohibited by law
102
Improper juror investigation elements
ABA: doesn't exist
Cal:
1. A lawyer
2. conducts an investigation
3. of a prospective juror or jurors or family members thereof
4. in a manner likely to influence the state of mind of the person
5. in connection with present or future jury service
103
Failing to reveal improper conduct by or toward jurors elements
1. A lawyer
2. fails to promptly reveal to the court
3. improper conduct
4. by or toward jurors, prospective jurors, or their family members
104
Improper public statement elements
1. A lawyer
2. who is connected with a case (or any associated lawyer in her firm or agency)
3. makes an extrajudicial statement
4. that the lawyer reasonably should know
5. will be disseminated
6. by means of public communication
7. and will have a substantial likelihood of materially prejudicing the case
105
To what is right of reply a defense?
Improper public statements
106
Right of reply elements
1. A lawyer
2. makes a public statement
3. that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity
4. not initiated by the lawyer or the lawyer’s client
107
Improperly acting as an advocate
TWO WAYS:
WAY ONE:
1. a lawyer
2. acts as an advocate
3. at a trial
4. in which the lawyer is likely to be a necessary witness
WAY TWO:
1. a lawyer
2. is representing a client
3. in connection with an official hearing or meeting of a governmental agency or legislative body
4. at which the lawyer or client is presenting evidence or argument,
5. the lawyer fails to disclose that the appearance is in a representative capacity
108
Defenses to improperly testifying
- the trial lawyer’s testimony will relate solely to an uncontested issue
-the trial lawyer’s testimony will relate solely to the nature and value of legal services she has rendered in the case
-withdrawal would cause substantial hardship to the client (ABA only)
-the client provides informed written consent (CALIFORNIA only)
109
Prosecuting without probable cause elements
1. a prosecutor
2. prosecutes a charge
3. that the prosecutor knows
4. is not supported by probable cause
110
failing to advise of right to counsel elements
1. a prosecutor
2. fails to make reasonable efforts to assure that the accused has been advised of the right to counsel
111
failing to allow opportunity to obtain counsel elements
1. a prosecutor
2. fails to give the accused
3. a reasonable opportunity to obtain counsel
112
obtaining improper waiver of pretrial rights elements
1. a prosecutor
2. seeks to obtain
3. from an unrepresented accused
4. a waiver of important pretrial rights
113
Brady equivalent elements
1. a prosecutor
2. fails to make timely disclosure to the defense of all evidence or information
3. known to the prosecutor
4. that tends to negate the guilt of the accused or mitigate the offense
114
Improper subpoena elements
ABA:
1. a prosecutor
2. subpoenas
3. a lawyer
4. to present evidence
5. about a client
6. without reasonable belief that: (a) the information is not privileged; (b) the evidence is essential; and (c) there is no
feasible alternative
Cal: doesn't exist
115
Failing to prevent improper law enforcement extrajudicial statements elements
1. a prosecutor
2. fails to exercise reasonable care to prevent investigators or other persons assisting the prosecutor in a criminal case from making an extrajudicial statement
3. that the prosecutor would be prohibited from making
116
Failing to remedy elements
FOUR WAYS:
WAY ONE:
1. a prosecutor
2. knows of
3. new, credible, and material evidence
4. creating a reasonable likelihood that a convicted defendant did not commit the offense,
5. the prosecutor
6. fails to promptly disclose the evidence
7. to an appropriate court or authority
WAY TWO:
1. a conviction took place in the prosecutor’s jurisdiction,
2. knows of
3. new, credible, and material evidence
4. creating a reasonable likelihood that a convicted defendant did not commit the offense,
5. the prosecutor fails to promptly disclose the evidence
6. to the defendant (unless a court authorizes delay)
WAY THREE:
1. a conviction took place in the prosecutor’s jurisdiction,
2. knows of
3. new, credible, and material evidence
4. creating a reasonable likelihood that a convicted defendant did not commit the offense,
5. the prosecutor fails to undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that she did not commit
WAY FOUR:
1. a prosecutor
2. knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that he did not commit,
4. the prosecutor fails to seek to remedy the conviction
117
Improper communication with represented person elements
1. In the course of representing a client,
2. a lawyer
3. communicates about the subject of the
representation
4. with a person he knows to be represented by counsel in the matter
5. That is not a public official, board, committee, or body (CALIFORNIA only)
6. NEITHER has the person’s counsel granted permission NOR is the lawyer otherwise authorized by law or court order to make such direct communication
118
Improperly acting disinterested elements
1. a lawyer
2. communicates with a person
3. and states or implies that she is disinterested
119
Failing to correct non-tribunal misunderstanding elements
1. a lawyer
2. communicates with a person
3. the lawyer knows or reasonably should know that the person misunderstands the lawyer’s role in the matter
4. the lawyer fails to make reasonable efforts to correct the misunderstanding
120
Giving legal advice where there's a conflict
1. a lawyer
2. communicates with a person
3. the lawyer knows or reasonably should know that the interests of the person are or have a reasonable possibility of being in conflict with the interests of the lawyer’s client,
4. the lawyer gives legal advice to the person, other than to obtain counsel
121
Improperly seeking privileged or confidential information
ABA: doesn't exist
Cal:
1. a lawyer
2. seeks to obtain privileged or otherwise confidential information
3. that the lawyer knows or reasonably should know the lawyer is not otherwise entitled to receive
122
False statements to a third person elements
1. a lawyer
2. knowingly makes a false statement
3. of material fact
4. to a third person
5. in the course of representing a client
123
Failing to disclose material facts to a third person elements
1. A lawyer
2. fails to disclose material facts
3. to a third person
4. when necessary to avoid assisting the client in a crime or fraud
5. the lawyer is not forbidden to do so by the ethical duty of confidentiality
124
Heavy-handed tactics elements
ABA:
1. In representing a client,
2. a lawyer
3. use means that have no substantial purpose other than to embarrass, delay, or burden a third person; or uses methods of obtaining evidence that violate the legal rights of such a person
Cal: doesn't exist
125
Failing to promptly notify about information mistakenly sent elements
1. a lawyer obtains a document or electronically stored information
2. relating to the representation of the lawyer’s client,
3. when she knows or reasonably should know that it was sent by mistake,
4. and she knows or reasonably should know the information is privileged or subject to work product protection (CALIFORNIA ONLY)
5. she fails to promptly notify the sender so that the sender can take protective measures OR examines the writing more than is necessary to determine that it is privileged or subject to the work product doctrine (latter only in CALIFORNIA)
126
False statements to bar examiners elements
1. an applicant, or a lawyer in connection
with another person’s application
2. Knowingly (or, in CALIFORNIA, with reckless disregard if one is the applicant)
3. makes a false statement of material fact
4. to the bar
5. in connection with the application
127
Failing to disclose to bar examiners elements
1. an applicant, or a lawyer in connection with another person’s application
2. Fail to disclose a fact
3. to the bar
4. necessary to correct a misapprehension
5. known by the person to have arisen in the matter
128
Failing to respond elements
ABA:
1. an applicant, or a lawyer in connection with another person’s application
2. Knowingly
3. fails to respond
4. to a lawful demand
5. for information
6. from an admissions or disciplinary authority
7. without requirement by the lawyer’s duty of confidentiality to a client
Cal: doesn't exist
129
Unauthorized practice of law
TWO WAYS:
WAY ONE:
1. a person
2. practices law
3. in a jurisdiction where doing so violates the regulation of the legal profession in that jurisdiction
WAY TWO:
1. a lawyer
2. assists a person in doing the above
130
Improper employing an unauthorized person elements
ABA: doesn't exist
Cal:
TWO WAYS:
WAY ONE:
1. a lawyer
2. knows or reasonably should know that a person is ineligible to practice law in that jurisdiction,
3. the lawyer employs, associates in practice with, or assists that person in engaging in any activity that constitutes the practice of law
4. that goes beyond research, drafting, or clerical activities
NOTE: the affirmative defense does NOT apply here
WAY TWO:
1. a lawyer
2. knows or reasonably should know that a person is ineligible to practice law in that jurisdiction
3. the lawyer employs, associates in practice with that person
4. the affirmative defense doesn't apply
131
Proper employment of ineligible person affirmative defense elements
1. The active lawyer provides the State Bar with written notice prior to employing, associating with, or assisting the ineligible person.
2. The written notice lists the prohibited activities and states that the ineligible person will not perform them.
3. The lawyer provides similar written notice to each client on whose specific matter the ineligible person will work.
4. The lawyer obtains proof of the client’s written notice and retains such proof and a copy of the written notice for two
years following termination of the lawyer’s employment by the client.
5. When the lawyer no longer employs, associates in practice with, or assists the ineligible person, the lawyer provides prompt written notice to the State Bar.
132
Failing to ensure compliance elements
TWO WAYS:
WAY ONE:
1. A partner or other lawyer who has managerial authority within a law firm
2. fails to make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that all lawyers in the firm conform to the RPC
WAY TWO:
1. A lawyer having managerial or direct supervisory authority over a nonlawyer
2. fails to make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer
133
Ordering a violation elements
1. A lawyer orders
2. a second lawyer’s (or nonlawyer’s) misconduct
134
Ratifying a violation elements
1. A lawyer
2. knows about a second lawyer’s (or nonlawyer’s) misconduct,
3. and ratifies it
135
Failing to take reasonable remedial measures elements
1. A lawyer is a partner or manager or has direct supervisory responsibility over the second lawyer (or nonlawyer),
2. she knows about that lawyer's misconduct
3. at a time when its consequences can be avoided or mitigated
4. she fails to take reasonable remedial action
136
To what is "subordinate lawyer" a defense
Theoretically everything
137
Subordinate lawyer elements
1. a subordinate lawyer
2. acts in accordance with a supervisor’s reasonable resolution of an arguable question of professional duty
138
Improper partnership involving legal practice elements
1. A lawyer
2. forms a partnership or other organization with a nonlawyer
3. any of the organization’s activities consist of the practice of law
139
Improper nonlawyer interest in law firm elements
1. a law firm
2. set up in such a way that
3. a nonlawyer owns an interest therein
140
Improper nonlawyer lawfirm director elements
1. a law firm
2. set up in such a way that
3. a nonlawyer
4. is a corporate officer or director thereof
141
Improper nonlawyer lawfirm direction elements
1. a law firm
2. set up in such a way that
3. a nonlawyer
4. has the right to direct or control
5. a lawyer’s professional judgment
142
Improper nonlawyer legal matters involvement elements
1. A lawyer
2. permits a person who recommends, employs, or pays the lawyer to render legal services
3. for another
4. to direct or regulate the lawyer’s professional judgment
5. in rendering such legal services
143
Improper sharing legal fees with a nonlawyer elements
1. A lawyer or law firm
2. shares legal fees
3. with a nonlawyer
144
Defenses to improper sharing legal fees with a non lawyer
-The lawyers in a firm agree that, when one of them dies, the others will pay a death benefit over a reasonable period of time to the dead lawyer’s estate or to designated persons.
- A lawyer or firm buys the practice of a dead, disabled, or disappeared lawyer and pays the purchase price to the estate or nonlawyer representatives of the lawyer.
-A lawyer or law firm includes nonlawyer employees in a compensation or retirement plan, even though the plan is funded by legal fees.
-A lawyer shares court-awarded legal fees with a nonprofit organization that employed or recommended the lawyer in the matter
ADDITIONAL CALIFORNIA WAY ONE:
1. a lawyer shares a fee with a nonprofit organization that brought the lawyer into the matter
2. The organization qualifies as exempt from federal income tax under section 501(c)(3) of the Internal Revenue Code
3. The lawyer enters into a written agreement with the organization to divide the fee;
4. At the time of the agreement with the organization or as soon thereafter as reasonably practicable,
5. the lawyer provides the client with written disclosure of the proposed fee division and its terms (including the identity of the organization) and obtains written consent from the client;
6. The total fee charged by the lawyer is not increased solely by reason of the agreement to divide fees with the organization
ADDITIONAL CALIFORNIA WAY TWO:
1. A lawyer or law firm
2. pays a prescribed registration,
referral, or other fee
3. to a lawyer referral service
4. established, sponsored, and operated in accordance with the State Bar of California’s Minimum Standards for Lawyer Referral Services
145
Improper noncompete clause elements
1. A lawyer makes or offers a partnership or employment or similar agreement
2. that restricts a lawyer’s right to practice after termination of the relationship,
3. that agreement concerns other than benefits upon retirement
146
Improper restrictive settlement agreement elements
1. A lawyer
2. makes or offers an agreement
3. in which a restriction on the lawyer’s right to practice is part of the settlement of a client controversy
147
Improper practice sale to nonlawyer elements
1. law practice or field of law practice
2. sold to other than lawyers or firms
148
Improper practice continuation post-sale elements
1. law practice or field of law practice
2. sold
3. lawyer fails to cease to engage in the private practice of law, or in the sold field of practice, in the geographic area or jurisdiction where the practice has been conducted
149
Inadequate notice post-sale elements
1. law practice or field of law practice
2. sold
3. lawyer fails to give written notice
4. to the seller’s clients
5. regarding the sale, the clients’ right to retain other counsel and to take possession of their files, and the fact that consent to the transfer of the clients’ files will be presumed if a client takes no action within 90 days of receipt of the notice
150
Improper post-sale fee increase elements
1. law practice or field of law practice
2. sold
3. Clients’ fees increased
4. solely because of the sale
151
Improper partial practice sale elements
ABA: doesn't exist
Cal:
1. A lawyer
2. sells
3. just a field of her law practice
4. in California
152
Improper matter transfer
ABA: doesn't exist
Cal:
1. a lawyer
2. transfers
3. a matter
153
Improper matter transfer defenses
consent
154
Matter transfer consent elements
TWO WAYS:
WAY ONE:
client gives express written consent
WAY TWO:
1. reasonable efforts have been made to locate the client
2. no response to the notice is received
3. within 90 days
155
False advertising elements
1. a lawyer
2. makes a false or misleading communication
3. about the lawyer or the lawyer’s services
156
Improper advertisement elements
1. advertisement or other communication
2. about a lawyer’s services
3. does not contain the name and contact information of at least one lawyer or firm
4. responsible for its content
CALIFORNIA ONLY
The advertisement contains:
-A guarantee or warranty of the outcome of a case
-Words or symbols that suggest quick cash or a quick settlement
-An impersonation of a lawyer or client without disclosing that it is an impersonation
-A dramatization of an accident or other event without disclosing that it is a dramatization
-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
157
Recommendation payment elements
1. a lawyer
2. gives anything of value, or promises to give anything of value,
3. for a person’s recommendation
4. of the lawyer’s services
158
Recommendation payment plan defenses
- usual charges of a legal service plan, a not for-profit lawyer referral service, or a qualified lawyer referral service. “Qualified” means that the service has been approved by an appropriate regulatory authority.
-reciprocal referral arrangement with that person (i.e., the lawyer and the other person recommend each other’s services to their respective clients). Any such arrangement must not be exclusive (i.e., the lawyer must not promise to refer all potential estate planning clients to his friend F and to no one else), and the client must be informed of the existence and nature of the agreement.
-gift or gratuity as a token of appreciation to a person who recommended the lawyer or the lawyer’s firm, provided the gift or gratuity was not offered or given in consideration of an understanding that such a gift or gratuity would be forthcoming or that referrals would be made or encouraged in the future.
159
Live person-to-person communication elements
1. a lawyer
2. by live person-to-person contact,
3. solicits professional employment
4. when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain
160
Live person-to-person communication defenses
-another lawyer
-a person with whom the lawyer has a familial, close personal, or prior professional relationship (including current and former clients)
-a person who routinely uses for business purposes the type of legal services offered by the lawyer (ABA ONLY)
161
Improper solicitation elements
1. A lawyer
2. solicits
3. professional employment,
4. The target of the solicitation has made known to the lawyer that she does not want to be solicited by the lawyer; OR The solicitation involves coercion, duress, or harassment.
162
Avoiding appointment elements
1. A lawyer
2. seeks to avoid appointment
3. by a tribunal
4. to represent a person
5. without good cause
163
Improper statement about an official elements
1. A lawyer
2. makes a statement
3. that is false
4. about the qualifications or integrity of a judge, hearing officer, or public legal official, or about a candidate for a judicial or legal office (in CALIFORNIA judicial candidates or officers only)
5. with reckless disregard as to truth or falsity
164
Improper political contribution acceptance elements
ABA:
1. A lawyer or firm
2. accepts a government legal engagement (i.e., employment that a public
official has the power to award) or an appointment by a judge
3. when the lawyer or firm has made or solicited a political contribution
4. for the purpose of obtaining such employment or appointment
Cal: doesn't exist
165
Failing to report RPC violation elements
ABA:
1. a lawyer
2. knows that another lawyer has violated the RPC
3. in such a way that it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer
4. the first lawyer fails to report the violation
5. to the appropriate professional authority
Cal: doesn't exist
166
Failing to report CJC violation elements
ABA:
1. a lawyer
2. knows that a judge has violated the Code of Judicial Conduct
3. in a way that raises a substantial question as to the judge’s fitness
4. fails to report the violation
5. to the appropriate authority
Cal: doesn't exist
167
Defenses to failing to report an RPC violation
-confidentiality
-substance abuse assistance program
168
Failure to self-report elements
ABA: doesn't exist
Cal:
Failing to report having been:
-Sued for malpractice three times in 12 months;
-Found civilly liable for fraud, breach of fiduciary duty, or the like;
-Sanctioned more than $1,000 (except for discovery sanctions);
-Charged with a felony;
-Convicted of certain serious crimes; or
-Disciplined in another jurisdiction.
169
Inhibiting a disciplinary complaint elements
ABA: doesn't exist
Cal:
1. A lawyer
2. makes or seek an agreement (either acting on their own behalf or on behalf of someone else)
3. that would: (a) prohibit a person from reporting a misconduct claim or the settlement thereof; (b) require a person to withdraw or refrain from cooperating with such a claim; or (c) provide that the record of any action or proceeding be sealed from review by the disciplinary agency
170
Improper settling a malpractice claim
1. A lawyer settles a malpractice claim
2. From a client or former client
3. without advising that person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel
Cal Bar Review
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