1
Q
Advancement of Expenses
A
- OK to advance litigation expenses
- Agreement must be in writing and must state that the advance is a loan requiring repayment.
- In CA, a lawyer is permitted to loan the client funds, but must have a written agreement and the loan cannot be used to entice the client to engage the lawyer’s services
2
Q
Allocation of Authority
A
- Lawyer shall abide by a client’s decisions concerning the objectives of representation and shall consult with the client as to the means by which they are to be pursued
- Client is responsible for determining their goals for the representation
- Lawyer controls the legal strategy and tactical means of achieving those objectives
- A client must be informed of all settlement offers and only they have the authority to accept or decline
3
Q
Business Transactions with a Client
A
- Lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client unless:
a) the transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client;
b) are fully disclosed and transmitted in writing in a manner that can be reasonably understood by the client;
c) the client is advised to consult with outside counsel and is given and opportunity to do so; AND
d) the client consents in writing.
4
Q
Communication with Represented Parties
A
- May not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or court order
5
Q
Contingency Fee Agreements
A
- lawyer’s fee will be paid out of any recovery the client receives
- agreement must be in writing, signed by the client, and include the percentage the lawyer will deduct, as well as the expenses and their deduction prior to or after the lawyer’s fee is deducted (MR).
- CA - writing must include how expenses not covered in the agreement will be charged, and that fees are not set by law and negotiable
- a lawyer may not charge a contingency fee in a divorce, alimony, or criminal case
6
Q
Duty of Candor to the Court
A
- MR - a lawyer shall not knowingly make a false statement of fact to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, or fail to disclose to the tribunal legal authority known to be adverse or offer evidence known to be false
- CA - lawyer is required to employ only means consistent with the truth, and never seek to mislead any judicial officer with false statements
7
Q
Duty of Client Candor Remedial Measures
A
- if lawyer knows of false testimony during a deposition, must take reasonable measures to remonstrate the client, advise the client of the lawyer’s duty of candor, and seek the client’s assistance to correct
8
Q
Duty of Communication
A
- must keep the client reasonably informed about any significant developments relating to the representation
- must promptly inform the client of any decision requiring informed consent, consult regarding objectives
- promptly comply with reasonable information requests
- explain a matter to the extent reasonably necessary to permit the client to make informed decisions
9
Q
Duty of Competence
A
- Model Rules, a lawyer is obligated to provide competent representation to a client and must possess the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
- CA Rules, a lawyer must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence
10
Q
Duty of Confidentiality
A
- MR prohibit disclosure of information relating to the representation of a client unless the client gives informed consent or impliedly authorizes disclosure, if disclosure is necessary to prevent crime or fraud, or if disclosure is necessary to secure legal advice regarding the lawyer’s ethical obligations.
- CA - disclosure is only permitted if the client gives informed consent or the lawyer believes disclosure is necessary to prevent death or substantial bodily harm, and the lawyer has tried to persuade the client not to act and informed the client about revealing the information
11
Q
Duty of Dilligence
A
- A lawyer shall act with reasonable diligence and promptness in representing a client (MR).
- CA - a lawyer cannot intentionally, recklessly, repeatedly, or with gross negligence fail to act with reasonable diligence in representing their client.
12
Q
Duty of Fairness to Opposing Party
A
- a lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value.
- a lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law
13
Q
Duty of Financial Integrity
A
- bill appropriately
- not co-mingle funds
14
Q
Duty of Loyalty
A
A lawyer owes his clients a duty of loyalty, which includes avoiding conflicts of interest and putting the interests of his client first. Conflicts of interest can be actual (current) or potential (future).
15
Q
Duty to Avoid Frivolous Claims
A
Lawyers are prohibited from asserting or defending an action or issue unless there is a basis in law and fact. A good-faith argument for an extension, modification, or reversal of existing law is not frivolous.
16
Q
Ex Parte Communications
A
A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding except for logistics and emergency information.
17
Q
Extrajudicial Statements
A
- cannot make extrajudicial statements that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter
- prosecutors may not make extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused and must exercise reasonable care in preventing investigators and other law enforcement personnel associated with the case from making such statements
18
Q
Fee Agreements
A
- MR - a lawyer shall not charge or collect an unreasonable fee, written agreements are adviseable
- CA - unconscionable or illegal, written agreements mandatory in CA unless the fee is $1,000 or less, the work is routine, the client is a corporation, or the client waives the requirement for a writing
- CA exceptions DO NOT apply to contingent fees, must be in writing
19
Q
Fee Sharing Between Lawyers
A
- MR - fees can be shared between lawyers in the same firm if the fee division is proportionate to the service provided, the client consents in writing, and the total fee is reasonable
- CA - lawyers must enter into written agreement to divide the fee, must get client’s written consent after full disclosure, and total fee can’t be higher because of sharing
20
Q
Fee Sharing With Non-Lawyers
A
Fees may not be shared and a partnership may not be formed with non-lawyers if any of their activities include the practice of law.
21
Q
Formation of Lawyer-Client Relationship
A
A person who consults with a lawyer about the possibility of forming a lawyer-client relationship with respect to a matter is a prospective client. A lawyer-client relationship is formed when a prospective client seeks legal services from a lawyer and the lawyer either agrees to provide services or fails to clearly decline services.
22
Q
Inadvertent Receipt of Documents
A
A lawyer who receives a document or electronically stored information (ESI) relating to the representation of the lawyer’s client and knows or reasonably should know the document or (ESI) was inadvertently sent shall promptly notify the sender.
23
Q
Lying Clients
A
- MR - if the lawyer knows their client/witness intends to engage, is engaging, or has engaged in criminal or fraudulent conduct related to the proceeding, they shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal
- CA - during criminal trials, a lawyer may allow the client to testify in a narrative fashion without disclosing perjury
24
Q
Limiting Malpractice Liability
A
- MR - may not agree to limit their malpractice liability without advising the client in writing to seek independent counsel
- CA, a lawyer may not limit their malpractice liability
25
Mandatory Withdrawal
* MR - must withdraw if
1. failure to withdraw would result in violation of ethics rules/other laws
2. lawyer's mental or physical conditions materially impairs ability to represent client
3. is discharged by the client
* CA - must withdraw if
1. lawyer KSK representation will violate CA rules
2. lawyer's mental or physical condition renders it unreasonably difficult to carry out representation effectively
3. lawyer KSK client is asserting claim/defense without probable cause or to harass
4. is discharged by client
26
Organizational Misconduct
Upon learning of an action by a person associated with the organization that will likely cause substantial injury to the organization, the lawyer must proceed as is reasonably in the best interest of the organization.
27
Organizations as Clients
* lawyer represents the organization itself and must act in the best interest of the organization
* may also represent the officers, directors, employees, shareholders, and other constituents of the organization as long as there is no conflict
28
Payment from a Third Party
* can't accept payment from a third party for representation unless:
1. the client gives informed consent (CA - informed written consent),
2. there is no interference with the lawyer's judgement,
3. and lawyer-client confidentiality is preserved.
29
Permissive Withdrawal
NO HARM TO CLIENT
**MR**
* may withdraw if withdrawal will not materially harm client
**CA**
* may not withdraw merely because it won't harm client
ACCEPTABLE EVEN WITH HARM
**MR**
* lawyer believes client's actions are criminal/fraudulent or finds course of action repugnant or has a fundamental disagreement with client
* representation causes an unreasonable financial burden
* client keeps failing to pay
* client makes representation unreasonably difficult
* other good cause
**CA**
* client's claim not supported/no good argument for reversal
* seeks to pursue criminal/fraudulent course of conduct or has used lawyer's services to advance conduct
* client makes representation unreasonably difficult
* continued representation likely to violate CA rules
* other good cause
## Footnote
Remember - under MR and CA rules, court permission is required if the action has commenced
30
Permitted Statements
* may state basic facts concerning the case, such as the claim, offense, or defense involved, and the identify of persons involved, including investigating and arresting officers
* warnings of danger or information necessary for apprehension are permitted when in a public record
31
Potential Conflicts of Interest
A potential conflict of interest occurs when the lawyer suspects a conflict, but representation is not materially limited. CA rules require informed written consent, the MR do not.
32
Reasonableness Factors for Fees
* time,
* difficulty level,
* expertise of the lawyer,
* degree of specialty,
* preclusion of other work,
* relationship with the client,
* results obtained
33
Referrals
* MR - lawyer may not give anything of value to a person for recommending their services, mutual referrals are OK
* CA - lawyer may offer a gift to a person who recommended their services that resulted in employment of the lawyer/firm but NOT in consideration of promise that the gift would be forthcoming or encourages future referrals
34
Reporting Misconduct Outside the Organization
* MR - if higher authority fails to take action and the lawyer reasonably believes the violation will result in substantial injury to the organization, the lawyer **may** report out and reveal information, even confidential, to the extent necessary to prevent the injury
* CA - the lawyer **may not** report out and should urge reconsideration, unless disclosure is necessary to prevent a criminal act likely to result in death or great bodily harm
35
Reporting Misconduct Within the Organization
If the lawyer knows of (CA - KSK) misconduct, they must report the matter to a higher authority within the organization, unless it is not in the best interest of the organization to do so.
36
Reporting Professional Misconduct of Others
* MR - lawyer who knows that another lawyer/judge has committed a violation of the rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate professional authority
* CA - required to report fraud, misappropriation of funds, and other criminal acts that raise a "substantial question" about another lawyer's honesty, trustworthiness, or fitness as a lawyer
37
Runners and Cappers
Lawyers who employ agents to monitor accidents and other events likely to produce legal work are subject to discipline. In CA, use of such runners or cappers is a criminal violation.
38
Sexual Relations
A lawyer may not have sexual relations with a client unless a consensual sexual relationship existed prior to the commencement of the representation.
39
Solicitation
A lawyer shall not solicit professional employment by live person-to-person contact when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain, unless the contact is with another lawyer, friend, family, or someone who routinely engage's the lawyer's services.
40
Termination of Representation
Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice, allowing time to find other counsel, surrendering papers and property to which the client is entitled, and returning any advance payment of fees that has not yet been earned.
41
Conflict of Interest (Personal to L)
* Lawyer must not represent a client if there is a significant risk the representation will be impaired by their own interests, unless:
1. lawyer reasonably believes he can still provide competent representation;
2. representation not prohibited by law;
3. affected client gives informed consent confirmed in writing (MR)/ informed written consent (CA);
4. representation does not involve two clients that are directly adverse
42
Opposing Lawyers Related
* MR - related lawyers can't represent clients in the same matter unless they give informed consent
* CA - even if there's no significant risk representation will be limited, lawyer can't represent a client in a matter that the lawyer KSK that another party's lawyer is a family member, lives with them, has an intimate relationship, unless lawyer informs client in writing about the relationship
43
Lawyer as a Witness
* MR - can't represent client if lawyer likely to be a necessary witness unless testimony relates to uncontested issue, value of legal services, or disqualification would be substantial hardship to client
* CA - can't represent client unless relates to uncontested issue, value of legal services, or lawyer obtains informed written consent
44
Soliciting Gifts
* MR - lawyer can't solicit a gift or prepare instrument giving gift to lawyer unless related
* CA - follows MR, in addition lawyer can prepare instrument if client has been advised by independent counsel
* unsolicited gifts generally OK if fair
45
Conflicts of Interest (Current Clients)
* lawyer can't represent clients with directly adverse interests or represent a client if there's a serious risk representation will be materially limited by the lawyer's responsibilities to a current client unless:
1. lawyer reasonably believes he can provide competent representation
2. not prohibited by law
3. not directly adverse; and
4. informed consent from clients (MR)/ informed written consent (CA)
46
Conflicts of Interest - Current and Former Clients
* lawyer can't represent new client in the same or substantially related matter as former client if the new client's interests are materially adverse to the former client unless former client gives informed consent confirmed in writing (MR)/ informed written consent (CA)
* "substantially related" means same transaction or substantial risk that confidential information obtained from the former client could materially advance the new client's position
47
Lawyer Switches Private Firms
* MR - conflict NOT imputed if the disqualified lawyer is screened off and doesn't share in the fee, written notice of compliance with ethical rules is given to the client
* CA - follows MR but adds requirement that the disqualified lawyer must not have substantially participated in the same/substantially similar matter
48
Former Government Lawyers
* prohibited from representing a client in a matter they participated personally and substantially as a government lawyer without informed written consent (CA)/ informed consent confirmed in writing (MR) from the government agency
49
Self Reporting Misconduct
A lawyer must self-report if:
1) they are charged with a felony;
2) convicted of a serious crime;
3) found guilty of a crime committed in their professional capacity;
4) disciplined;
5) sanctioned for $1,000 or more;
6) sued for malpractice; or
7) a court judgment finds the lawyer grossly incompetent or willfully misrepresented a client.
## Footnote
Remember - CA only
