Describe the rule for advertisement
Advertising must not be false or misleading. A lawyer may advertise services through written, recorded or electronic communication, including public media, unless the prospective client has made it known to the lawyer of their desire to not be solicited. All advertisements must:
a. Be truthful. A lawyer shall not make false or misleading communications about the
lawyer or the lawyer’s services.
b. Contain the name and address (ABA says contact information which can include a telephone number) of at least one lawyer responsible for its content.
[Advertisement] –> Describe the Solicitation rule.
A lawyer may not conduct in-person, live telephone, or real-time electronic contact for pecuniary gain, subject to the following exceptions:
a. Free legal services (not motivated by pecuniary gain),
b. Family members or those with a close personal relationship to lawyer,
c. Prior professional relationships or other lawyers, or
d. Prepaid or group legal service plans operated by an organization, not owned or directed by the lawyer that sells plans/subscriptions to people who are not known to have a specific legal problem.
Rule understanding tip: “Live” communication does not likely include chat rooms or text messages (i.e., forums that recipients can easily disregard – unless they are being harassed) in Cal. (the ABA specifically says those are not included). And lawyers cannot use
runners or cappers (others) to avoid liability for improper solicitations.
What is the Cal only label rule in advertisements?
Cal. only label: Those known to be in need of legal services in a particular matter can be contacted by written, recorded, or electronic communication if the advertisement includes the word “Advertisement” or similar words on the outside of the envelope and at the beginning and end of any recorded or electronic communication, unless it is apparent that it is an advertisement.
[Advertisement] –> List the Cal. violation rules related to communications
Cal. presumes the following communications to be in violation of the rules:
a. Express guarantees or warranties,
b. Testimonials or endorsements without a disclaimer that it is not a guarantee, warranty, or prediction of results.
c. “No fee without recovery” communications, unless it expressly discloses whether the client will be liable for costs.
d. Solicitations in prisons and hospitals and similar institutions.
e. Impersonations or dramatizations unless there are disclosures indicating they are such.
[Advertisement] –> Define the specialist rule.
A lawyer shall not imply or state that they are certified as a specialist in a particular field of law, unless:
a. The lawyer has been certified as a specialist by the ABA or a state-approved organization,
and
[ Cal. requires it ] to be an organization certified by the Board of Legal Specialization or other entity accredited by the Cal. State Bar.
b. The name of the certifying organization is clearly identified in the communication.
c. A lawyer is allowed to communicate that they “practice” in a particular field of law or that their firm “specializes in” a particular field of law, but such communications are subject to the false and misleading standards.
[Unauthorized practice of law] Define the
No practice with a non-lawyer> rule.
A lawyer shall not practice with or form a partnership or association with a non-lawyer to provide legal service.
a. A lawyer shall not share legal fees with a non-lawyer.
b. A non-lawyer shall not direct or control the lawyer’s professional judgment.
[Unauthorized practice of law] –> Can a lawyer hire a disbarred lawyer?
Disbarred lawyers: A lawyer cannot hire a disbarred lawyer to perform legal services, but they can perform non legal tasks such as research or clerical work.
- Notification: The CA State Bar and the client must both be informed in writing of the employment of the disbarred attorney.
[ Liability for others lawyer’s conduct ] –> Can a lawyer be responsible for another lawyer’s ethical violation?
A lawyer shall be responsible for
another lawyer’s violation of the Rules of Professional Conduct if the lawyer knowingly ratifies the conduct, or is a partner, or has direct supervisory authority over the other lawyer and could have mitigated the consequences.
a. Subordinate lawyer: A lawyer does not violate these rules if they act in accordance with a supervisory lawyer’s reasonable resolution of an arguable question of professional duty.
Define the Duty of Fairness
A lawyer has a general duty of fairness to third parties, opposing counsel, and the court.
Exam tip: Anytime a lawyer takes any action that may disadvantage another party, opposing counsel, or alter evidence, consider the duty of fairness. If there is an action occurring in the facts that is not specified in the rules above but seems questionable, mention the duty of fairness. Use common sense to determine what you think the lawyer should do and what you would do as an ethical lawyer. Label the discussion
“Duty of Fairness” and analyze why the actions are or are not fair and/or ethical to others.
What is the Duty oF Fairness to Represented persons?
A lawyer shall not communicate with people known to be represented by another lawyer in that matter unless the other lawyer has consented, or the
communication is authorized by law or court order.
What is the Duty oF Fairness to Corporation/Organization?
A lawyer must obtain consent of
organization’s lawyer before speaking with:
- One who supervises or regularly consults with organization’s lawyer, or
- One who has the authority to obligate the organization regarding the matter at issue, or
- One whose conduct in the matter may be imputed to the organization.
[Duty of Fairness] –> Define the Duty of fairness to unrepresented parties
When a lawyer communicates with an unrepresented person in a matter, the lawyer shall not state or imply that are disinterested and must make reasonable efforts to correct any misunderstandings (i.e., identify who they represent). The lawyer also shall not give legal advice to that person, other than advise them to seek independent counsel.
[Duty of Fairness] –> What is the Duty of fairness to the court?
A lawyer shall not knowingly:
a. Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made,
b. Fail to disclose adverse legal authority, or
c. Offer evidence that the lawyer knows to be false (perjury).
d. A lawyer who knows the client intends to engage in fraudulent or criminal activity shall take reasonable remedial measures, including, if necessary and permissible, disclosure to the tribunal.
[Duty of Fairness] –> Define the Duty of fairness to opposing counsel.
As to the opposing counsel and their party, a lawyer shall not:
- Unlawfully obstruct evidence, or destroy or conceal (Cal. includes suppress) documents
or other material; - Falsify evidence or induce others to do so;
- Fail to promptly notify the sender of any materials inadvertently sent to lawyer (Cal.
also states the lawyer should refrain from examining the writing to the extent possible); - Allude to any matter the lawyer does not reasonably believe is relevant or will not be supported by admissible evidence during trial (Cal. says to not assert personal knowledge of facts);
- ABA: Make a frivolous discovery request or fail to reasonably comply with discovery requests;
- ABA: Request others to refrain from giving relevant information unless a relative or agent of client;
- Cal.: Pay a witness to testify unless for reasonable expert fees, compensation for loss of time for witness to testify, or reasonable expenses incurred;
- Cal.: Advise a person to secrete themself or leave the jurisdiction to avoid being available to testify.
- Knowingly disobey the court rules;
[Duty of Fairness] –> Define the Duty of Decorum to the tribunal.
(judges, jurors, employees, etc.): A lawyer shall not:
a. Seek to influence jurors, judges, or other officials,
b. Communicate ex parte with such persons during proceedings,
c. Engage in conduct intended to disrupt proceedings, or
d. Communicate with jurors after they are discharged if they don’t want to communicate.
[Duty of Fairness] –> Define the Trial Publicity Rule
A lawyer who is participating in an investigation or litigation or a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding.
a. The lawyer may state the claim, offense, or defense involved; the information in the public records; that an investigation is in progress; requests for information; warnings
of danger; and the status of the accused in a criminal case.
b. The following are more likely than not prejudicial, and should not be publicly stated:
- Character, credibility, reputation, or criminal record of a suspect or witness;
- Possibility of a guilty plea or contents of a confession or any test results;
- Opinion as to guilt or innocence of criminal defendant; or
- Information the lawyer reasonably knows is likely to be inadmissible.
[Duty of Fairness] –> Define the Special duties of public prosecutors
Public prosecutors shall”
a. Refrain from prosecuting charges that are not supported by probable cause;
b. Make reasonable efforts to ensure the accused is advised of the right to counsel;
c. Not seek to obtain waivers of rights from an unrepresented accused;
d. Make timely disclosure to the defense of all exculpatory evidence;
e. Refrain from making extrajudicial statements that have a substantial likelihood of
heightening public condemnation of the accused (Cal. says use reasonable care); and
f. Disclose to the court and investigate new evidence that shows defendant might not have
committed a crime;
g. Seek to remedy known wrongful convictions.
What is the Duty to report ethical violations under the ABA?
A lawyer who knows that another lawyer has committed a violation of the Model Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority.
What is the Duty to report ethical violations under the Cal. only ?
A lawyer must inform the State Bar when they know of credible evidence that another lawyer has committed a criminal act or engaged in dishonesty or misrepresentations or misappropriated funds that raise a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.
[Duty to report ethical violations] –> What is the Cal. self-reporting rule?
A lawyer must report themselves within 30 days when they have been:
a. Sued for malpractice 3 times in 12 months.
b. Found civilly liable for fraud, breach of fiduciary duty, etc.
c. Sanctioned more than $1,000.
d. Charged with a felony.
e. Convicted of a serious crime.
f. Disciplined in Cal. or another jurisdiction.
List all the elements for the [Duty to the public/profession ] rule
- Be truthful: A lawyer shall not make a false statement of material fact or law to others, or fail to disclose material facts not protected under the duty of confidentiality, or engage in
conduct involving dishonesty, fraud, or deceit - No frivolous claims: A lawyer shall not bring or defend a proceeding unless there is a good faith basis in law and fact for doing so.
- No criminal conduct: A lawyer shall not counsel a client to engage, or assist a client, in criminal or fraudulent conduct, but may counsel the client to discuss the legal consequences and assist them in making a good faith effort to understand the law. A lawyer shall not commit a criminal act that reflects adversely on their own honesty, trustworthiness, or fitness as a lawyer.
- No harassment/discrimination: Cal. prohibits a lawyer from seeking, accepting, or continuing employment to conduct a defense or case without probable cause or for the purpose of harassing or maliciously injuring any person. The ABA also prohibits harassment and discrimination as determined by federal and state law.
- No threats: Cal. prohibits a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage in a civil dispute.
Conflict of interest - Lawyers who practice together in a firm.
Lawyers who practice together in a firm are treated as a single unit for conflict of interest purposes
Whether a group of lawyers should be regarded as a firm depends on many factors, including whether the lawyers:
(1) have a formal agreement among themselves,
(2) hold themselves out in a way that would make the public think they practice together as a firm,
(3) share their revenues and responsibilities,
(4) have physical access to each other’s client files, and
(5) routinely talk among themselves about the matters they are handling
Duty to Supervise a non-lawyer
The ABA and California Rules require a lawyer having managerial or direct supervisory authority over a nonlawyer to make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer
Respect for Rights of Third Persons (Inadvertent Disclosure)
ABA
♦A lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.
♦Inadvertent Disclosure:A lawyer who receives a document or electronically stored information relating to the representation of the lawyer’s client and knows or reasonably should know that the document or electronically stored information was inadvertently sent shall promptly notify the sender. Note: No requirement to stop reading.
CA
♦ When a lawyer receives material that “obviously appears to be” confidential and subject to a privilege, and where it is reasonably apparent that the materials were provided or made available through inadvertence, the receiving attorney must do three things:
● Refrain from examining the materials any more than is essential to ascertain whether the materials are privileged.
● Immediately notify the sender.
● Proceed to resolve the situation by agreement or resort to a court for guidance with the benefit of protective orders and other judicial intervention as may be justified
