1
Q
What is Rule 1.1?
A
Competence
- A lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.
- Competence means that the lawyer has the learning and skill and mental, emotional, and physical ability reasonably necessary for performance of the legal service.
2
Q
What are the options if a lawyer does not have the competence to handle a case?
A
- Associate another attorney who has competence
- Acquire sufficient learning and skill
- Referring the matter to a lawyer that the lawyer reasonably believes to be competent.
3
Q
What is Rule 1.3?
A
Diligence
A lawyer shall not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing a client.
4
Q
What is reasonable diligence?
A
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.
5
Q
Is a mistake of judgment a lack of competence?
A
It is not, by itself a failure to act competently.
6
Q
Competence with Technology
A
A lawyer must have a working knowledge of the uses of technology in a law practice.
This incudes the benefits as well as risks associated with relevant technology.
7
Q
Communication with the client
A
The lawyer must keep the client reasonably informed about significant developments relating to the representation.
8
Q
Duty to communicate with a client with diminished capacity
A
The duty to communicate are absolute.
If the lawyer is unable to communicate, the lawyer may consider withdrawing.
9
Q
Rule 1.2
A
Scope of Representation
- A lawyer may take action on behalf of hte client htat is authorized.
- A lawyer shall abide by the client’s decision to settle a matter.
10
Q
Rule 1.2.1
A
Advising or Assisting the Violation of Law
*A lawyer shall not counsel a client to engage or assist a client in conduct that criminal, fraudulent, or a violation of any law.
11
Q
Scope of Representation - Components of the initial engagement letter
A
- Specify the client
- The client’s role
- Scope of representation
12
Q
Representation of a fiduciary
A
The lawyer should advise the beneficiaries that representation is not extended to them, and they should seek separate counsel.
13
Q
Can an attorney represent a fiduciary and one or more beneficiaries?
A
Yes, provided there is informed consent and a detailed disclosure of the actual and potential conflicts that may arise in the course of the representation.
14
Q
Advising trustee on issues of personal liability
A
The attorney should advise the fiduciary that the beneficiaries may assert actions, such as breach of trust, self-dealing, failure to deal with beneficiaries impartially, and claims on the fiduciary’s accounting.
15
Q
Probate Code section 21384
A
Certificate of Independent Review
*A lawyer-prepared certificate of review validates a transfer to a person described in PCS 21380
16
Q
PCS 21384 Requirements
A
The lawyer preparing the COIR cannot have any legal, business, financial, professional relationship with the beneficiary.
A written agreement should be prepared.
17
Q
Rule 1.7
A
A lawyer shall not, without informed consent from each client that representation is directly adverse to another client in the same or a separate matter.
18
Q
Rule 1.7 - additional requirements
A
The lawyer must:
- Able to provide competent and diligent representation
- The 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 proceeding.
19
Q
Rule 1.7(b)
A
Lawyers may use their own informed judgment in determining whether a potential conflict of interest poses a significant risk of compromising the lawyer’s exercise of independent judgment and loyalty to the client.
20
Q
Duty of Undivided Loyalty
A
A lawyer cannot undertake representation directly adverse to that client without that client’s informed written consent.
21
Q
Representing more than one client
A
A lawyer can represent more than one client with adverse interests if:
- If the lawyer believes it is appropriate
- The extent to which material information imparted by any client may be share with others
- The possibility that the attorney may have to withdraw
22
Q
Joint Representation of Spouses - presumption
A
There is no actual adversity between the spouses and all information shared by the clients is subject to joint representation.
23
Q
Joint Representation of Spouses - Adverse Interests
A
A lawyer can represent joint spouses with adverse interests if:
- Obtains informed written consent
a. The lawyer must explain the lawyer’s responsibilities to each spouse and the potential conflict. - The lawyer can provide competent and diligent representation to both spouses
- The engagement letter must state the attorney can withdraw if there is an irreconcilable conflict between spouses.
24
Q
Engagement Letter and conflict of interests (requirements)
A
The engagement letter cannot state that there is a potential conflict of interest. It must be informed by stating the following:
- Examples of circumstances where conflicts could surface
- Discuss the material risks (actual or foreseeable) risks of joint representation
25
Communication with nonclients
The attorney can communicate with nonclients but it must be made clear who the client is.
26
Representation of an Organization
The client is the organization itself and the attorney must take actions pursuant to the direction of the BOD, etc.
If the lawyers knows or reasonably knows that a constituent is acting in a manner that is a violation of a law imputable to the organization and will likely result in substantial injury to the organization - the lawyer must refer to the matter to a higher authority in the organization.
27
Representation of a Fiduciary and Beneficiary
If an attorney is representing a person in both roles, there may be instances where the lawyer must advise the client on a matter related to his or her personal interest. This service must be charged separately and not charged to the trust. These two representations must be kept separate.
28
Lawyer's Civil Liability to the Beneficiaries
1. The lawyer may be held liable to the beneficiaries if the lawyer actively participates in a breach of trust by the trustee
2. The lawyer must disclose to the beneficiaries any potential conflict of interest that the lawyer may have that affects the beneficiaries' interests
3. The lawyer must make it clear that he is not representing the beneficiaries
29
PC 16003
If a trust has two or more beneficiaries, the trustee has a duty to deal impartially with them and shall act impartially in investing and managing the trust property, taking into account any differing interests of the beneficiaries
30
PC 16004
1. The trustee has a duty not to use or deal with the trust property for the trustee's own profit or for any other purpose unconnected with the trust.
2. The trustee cannot take part in any transaction in which the trustee has an interest adverse to the beneficiary.
31
PC 16004
The trustee of one trust has a duty not to knowingly become a trustee of another trust adverse to the interests of the first trust.
32
Duty to disclose representation of third party
The attorney has a duty to disclose to the trust beneficiaries concurrent representation of the executor and third party.
33
Duty to Withdraw
If joint clients have directly adverse interests, the lawyer has a duty to obtain their written consent to the continuing joint representation and may have to withdraw from representing both of them.
34
Advance Consent to Representation with Conflicts of Interest
An advance waiver of potential future conflicts is permitted, even if the waiver does not specially state the exact nature of the future conflict, so long as the waiver was fully informed.
35
Transactions with clients implicating lawyer's personal interests
A lawyer may not enter into a business transaction with a client unless:
1. The terms are reasonable and fair to the client and the lawyer's role is fully disclosed and in writing
2. The client is advised to seek independent legal advice or is represented
3. The client provides informed written consent to the terms of the transaction
36
Donative transfers to an attorney
There is a presumption that a client was induced to make a substantial gift to an attorney, unless the attorney and the client are related by blood or marriage.
37
Conflicts of Interest - Former Clients
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former clients unless the former client gives informed written consent.
38
Imputation of Conflicts of Interest - Law Firm
The lawyer in the firm must:
1. Not substantially participate in the same or a substantially related matter.
2. Is screened off (ethical wall) from the case and does not receive any of the fees from the case
3. Written notice to the affected client
39
Client Confidentiality
A lawyer shall not reveal protected information, unless it is necessary to prevent a criminal act that the lawyer reasonably believes will result in death or substantial bodily harm.
The lawyer must make an effort to persuade the client not to commit the crime and inform the client that the information must be revealed.
40
B&P Code 6068(e)
The maintain inviolate the confidence, and at every peril to himself or herself to preserve the secrets, of his or her client.
The lawyer can reveal information to prevent a crime.
41
Evidence Code 947
There is no privilege as to communication relevant to an issue between parties all of whom claim through a deceased client.
42
Evidence Code 956
There is no privilege if the attorney's services are being used to commit or plan a crime.
43
Evidence Code 956.5
There is no privilege if disclosure is ncessary to prevent a criminal act, death or substantial bodily harm.
44
Implied Authorization to Disclose
There is an ability to disclose confidential information to the lawyer's staff, e.g. other lawyers, staff, etc..
45
Moeller v. Superior Court
Attorney-client privilege runs between the attorney and the trustee
46
Fiduciary Trust International case
a. There are different types of communication – litigation (privileged); administration (not-privileged) –
i. You have to look at the dominant purpose of the matter.
47
Oasis West case
Former client sued the attorney. Once you have privileged information, you cannot use this to harm your former client. You cannot use this to help your own interest or to help a new client. This is a broad duty to your former client.
48
Rule 4.3 – Duties to Non-Clients
a. As an attorney, you cannot claim that you are disinterested.
b. As an attorney, you have to make it clear that you do not represent them.
c. If you prepare a document, you may accidentally make them your client. You should have a cover letter stating that you are not their attorney of record. If you want legal advice, you should retain your own attorney.
49
Generally Known Exception
If information about a client becomes generally known – it is not privileged.
50
Representing Spouses - Presumption
When a lawyer represents spouses they are joint clients, in the absence of a contrary agreement. The attorney must set forth explicit disclosure rules in a written engagement letter.
51
Disclosure Between Joint Clients
If it is trivial - do not have to disclose
If not trivial - encourage the client to disclose
If he or she will not, then withdraw from representing both clients.
52
Prospective Clients
1. Any information you learn in the initial consultation, you cannot disclose it and you cannot represent adverse clients. They are treated as a former client.
a. Exception – If both the prospective client and new client both consent in writing.
b. Exception – Only gather enough information to know whether you want to represent the client. It is subjective.
i. If you have had limited exposure, other members of the firm can represent him or her, so long as you give written notice to the party.
53
Sex with Clients
1. You cannot have sex with clients, unless the sexual relationship began before your representation of the client.
54
Communication with clients
1. Explain a matter to the extent reasonably necessary to permit the client to make informed decisions re: representation.
2. A lawyer may delay transmission of information if the lawyer reasonably believes that the client would react in a way that may cause imminent harm to the client or others.
3. A lawyer's obligation is subjective to any protective orders.
55
B&P Code Section 6068(m)
Respond promptly to reasonable status inquiries of clients and to keep clients reasonably informed of significant developments in matters with regard to which the attorney has agreed to provide legal services.
56
The Drafting Attorney Named as Fiduciary or Beneficiary
1. You cannot draft an estate plan and make yourself a beneficiary.
2. You cannot benefit family members or partners of your law firm.
3. If you do that, then there is a presumption of undue influence. You should get a Certificate of Independent Review or it is susceptible of being overturned.
57
In re: Lowney (State Bar Ct Review Dep’t, Apr. 5, 2012, NO. 07-O-11504-PE)
1. Elderly client came into an attorney’s office to create an estate plan.
2. The attorney creates a personal relationship with him. The attorney marries him and files a Confidential Marriage Certificate (a marriage that is not in the public record). In the document, you have to state that you live together. The marriage was a shame. The attorney gained access to his assets, and used them for her own purposes.
58
Imputed Conflicts of Interest
Your law partner has a relationship with an outside business. That is imputed to you.
59
Accuracy of Communications
An attorney shall not knowingly make a false statement of material fact or law to a third person
Fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client
60
Communication with Persons Represented by Counsel
A lawyer shall not communicate directly or indirectly about the subject of the representation with a person the lawyers knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.
61
Communication with Persons Not Represented by Counsel
If the lawyer knows this person is in conflict with their client's interest, he or she shall not give legal advice to that person except that that person may want to secure counsel.
The lawyers shall not seek privileged information.
62
Client with Diminished Capacity
The attorney must communicate with the client even if that client becomes incapacitated during representation. The duty of communication applies even if the client has difficulty understanding or retaining the lawyer's communication.
63
Compensation
i. You must charge reasonable attorney’s fees.
ii. Written fee agreement, if over $1,000
iii. Cannot charge unconscionable fees.
64
Examples of factors used to determine unconscionable fees
1. The lawyer engaged in fraud
2. The lawyer failed to disclose material facts
3. The amount of the fee in proportion to the value of the services performed
4. The relative sophistication of the lawyer and the client
5. The novelty and difficulty of the question involved and the skill needed
6. The amount involved and the results obtained
7. The experience, reputation, and ability of the lawyer performing the service
8. Whether the fee is fixed or contingent
9. The time and labor required
10. Whether the client gave informed consent to the fee
65
Duties Relating to Other Attorneys
i. Rule 1.14 – Inadvertent Disclosure – The OC accidently sent a document that you were not meant to receive. You cannot read it as soon as you realize the inadvertent disclosure, and you have to inform OC.
66
Duties of Supervising Attorney and Subordinate Attorney
i. Rule 5.1 and Rule 5.2 – You have to make sure that subordinate attorneys follow the rules of professional responsibility.
ii. The supervising attorney cannot direct the subordinate attorney to do something unethical.
67
Duty to Supervise Nonlawyers
i. Any supervising attorney must supervise nonlawyers. This includes Associates and Partners. They must ensure that their staff is not violating the Rules of Professional Responsibility.
ii. Partner – duty to create firm-wide rules
68
Duties to the Court
i. Do not cause unnecessary delays
ii. No misrepresentations to the court
iii. Do not suppress evidence
iv. Do not file a pleading for an improper purpose
v. Follow the Local Rules
69
Compensation Paid by Person Other Than Client
A lawyer cannot receive fees from others, unless:
1. There is no interference with the lawyer's professional judgment and it does not impede the lawyer-client relationship
2. The information is protected and kept confidential
3. The lawyer obtains the client's informed written consent
70
Fee Sharing with Other Lawyers
Lawyers who are not in the same law firm shall not divide a fee for legal services unless:
1. There is a written agreement
2. The client has consented in writing re: the division of fees, identity of the lawyers and the terms of the division.
71
Conduct of Litigation
An attorney shall not:
1. Unlawfully obstruct another party's access to evidence
2. Falsify evidence
3. Pay a witness for desired testimony
72
Conduct of Mediation
The lawyer may not make false or misleading statements to any person.
The lawyer must provide a written disclosure re: confidentiality
73
Lawyer as Percipient Witness
A lawyer cannot act as an advocate at trial, unless:
1. The lawyer's testimony relates to an uncontested issue or matter
2. The lawyer's testimony relates to the nature and value of legal services rendered in the case
3. The lawyer has obtained informed written consent from the client.
74
Withdrawal from Representation
A lawyer shall withdraw if:
1. The lawyer knows or reasonably knows that the client is bringing an action, asserting a position without probable cause and for the purpose of harassing or maliciously injuring any person.
2. The lawyers knows that representation will violate the State Bar Act.
3. The lawyer's mental or physical condition renders it unreasonably difficult to carry out the representation effectively.
4. The client discharges the lawyer.
75
Actions necessary upon termination
The lawyer shall return all documents and any unused fees.
Specialization Exam
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