Professional Responsibility

Question 1

Formation of L-C Relationship

Answer 1

• A L-C relationship is formed when a person seeks legal services from a L, and the L either:
  (a) manifests consent to do so, or
  (b) fails to manifest a lack of consent and knows that the person would reasonably rely on the L to provide legal services.
• In CA, the reasonable perception of a purported C may determine if such person deemed is a C of the L.

Question 2

Proper Scope of L-C Relationship

Answer 2

• Generally, a C controls the objectives of the rep and makes substantive decisions (whether to accept a settlement offer; or plead guilty, testify, or waive a jury trial in criminal cases).
• The L controls the means to accomplish those objectives, but must consult with the C as to such means.
• A L may limit the scope of the rep if:
  1. it’s reasonable under the circumstances, and
  2. the C gives informed consent.

Question 3

Duty of Competence

Answer 3

• The duty of competence requires a L to possess the legal knowledge, skills, preparation, and throughness reasonably necessary to represent the C.
• A L cannot take a case in an unfamiliar area of law unless he:
  (a) associates with another competent L, or
  (b) acquires sufficient learning and skill before performance is required.
• In CA, a L cannot intentionally, recklessly, repeatedly, or with gross negligence, fail to perform legal services with competence.

Question 4

Duty of Communication

Answer 4

The duty of communication requires a L to:
1. inform the C when informed consent is required,
2. keep the C reasonably informed on the status of the matter,
3. promptly comply with requests for info,
4. consult with the C on strategy decisions and on matters requiring their consent, and
5. advise the C when the C expects assistance not permitted by ethical rules.

Question 5

Duty of Diligence

Answer 5

• A L shall act with reasonable diligence and promptness in representing a C.
• Unless the rep is properly terminated, a L must pursue the case to the end.
• In CA, a L cannot, intentionally, recklessly, repeatedly, or with gross negligence, fail to act with reasonable diligence in representing the C.

Diligence: careful and thorough work

Question 6

Duty of Confidentiality

Answer 6

A L cannot reveal any info relating to the rep of a current/former/prospective C unless the C gives informed consent or disclosure is authorized by an exception.

Question 7

Duty of Confidentiality Exceptions

Answer 7

• Under the ABA, a L may disclose CI when:
  (a) to prevent death or substantial bodily harm,
  (b) to prevent the C from committing a crime or fraud that will result in substantial financial loss,
  (c) to secure legal advice about the L’s compliance with ethical rules, (d) to defend a malpractice action, or
  (e) to comply with other law or a court order.
• In CA, a L may disclose CI to prevent a crime that will likely result in death or substantial bodily harm.
• A L must:
  1. first make a good faith effort to persuade the C not to commit the criminal act, and
  2. inform the C of decision to reveal the CI.

Question 8

Inadvertent Disclosure

Answer 8

A L who receives confidential & privileged documents inadvertently must:
1. refrain from examining the material (CA), and
2. promptly notify the sender.

Question 9

Duty to Safeguard Property

Answer 9

• A L must hold the property of a C separate from the L’s own property.
• All C funds must be kept in a separate attorney trust account.
• A L must return C property upon request or at the end of rep.
• In CA, a C case file cannot be withheld for the purpose of getting paid.

Question 10

Duty of Loyalty

Answer 10

• A L owes his C the fiduciary duty of loyalty, which requires the L to act in the C’s best interest and avoid conflicts of interest.
• A L cannot engage in self-dealing or act in his own interest rather than the C’s best interest.

Question 11

Conflict of Interest (Current Clients)

Answer 11

A conflict of interest exists if:
(a) the rep is directly adverse to another C, or
(b) there is a significant risk that the rep will be materially limited due to the L’s
(x) personal interests or
(y) responsibilities to another C or third person.

another present/former client

Question 12

Addressing Conflict of Interest

Answer 12

• A L may represent a C despite conflict of interest if:
  1. he reasonably believes that he will be able to provide competent and diligent rep to the C,
  2. the rep is not prohibited by law,
  3. he’s not representing parties on opposite sides of the same litigation, and
  4. each C gives informed consent (CA: informed written consent; ABA: informed consent, confirmed in writing).
• In CA, a L must provide written disclosure when the L has a professional or personal relationship with a party, a witness, or another party’s L in the same matter.

Question 13

Conflict of Interest (Former Clients)

Answer 13

Unless a former C gives informed consent, a L cannot:
1. represent another person in the same or a substantially related matter,
2. when the person’s interests are materially adverse to the interests of the former C.

Question 14

Conflict of Interest (Imputed Conflicts)

Answer 14

A conflict of interest for one L in a firm is imputed to all other Ls in the firm, unless the conflict is:
(a) personal; or
(b) based on association with the L’s previous firm; and
(x) the L is timely screened, and
(y) written notice is given to the former C.

Question 15

Conflict of Interest (Former Government Lawyers)

Answer 15

Former gov Ls (including prosecutors) who worked personally and substantially on a matter cannot work on that same matter at a private firm, unless the gov agency consents in writing.

Question 16

Use of Client’s Information

Answer 16

A L cannot use a current/former C’s CI to the disadvantage of the C unless the C gives informed consent.

Question 17

Transactions with a Client & Financial Interests Adverse to the Client

Answer 17

A L shall not enter into a business transaction with a current C or knowingly acquire a financial interest adverse to the C unless:
1. the terms are fair and reasonable to the C,
2. the terms are fully disclosed in writing,
3. the C is advised to consult with an independent L, and
4. the C consents in writing.

Question 18

Proprietary Interest in a Case

Answer 18

• Under the ABA, a L cannot acquire a proprietary interest in the cause of action or subject matter of litigation except for:
  (a) a lien to secure the L’s fee, or
  (b) a contingency fee in a civil case.
• In CA, there is no similar rule.

Question 19

Financial Assistance & Loans to Clients

Answer 19

• A L cannot provide financial assistance to a C, except for advancing litigation costs and expenses (a) in contingency cases, or (b) to an indigent C.
• In CA, a personal loan to a C is permitted, if:
  1. it is made after the L is retained,
  2. with a written promise to repay by the C.
• Under the ABA, loans to Cs for personal expenses are never permitted.

Question 20

Payment of Legal Fees by a Third-Party

Answer 20

A third-party may pay a C’s legal fees if:
1. the C gives informed consent (in CA, informed written consent),
2. there is no interference with the L’s independence of professional judgment, and
3. the info related to the rep remains confidential.

Question 21

Serving on the Board of a Client’s Organization

Answer 21

If a L serves as a board member for a corp/org he represents, he must do so effectively and without jeopardizing his ethical duties to the org as his C.

Question 22

Limiting Liability to a Client

Answer 22

• Under the ABA, Ks limiting a L’s liability are permitted if the C is independently represented in making the K.
• In CA, a L cannot contract to limit the L’s liability prospectively for malpractice.
• Under both ABA & CA, a L cannot settle a claim for malpractice liability, unless the C is:
  (a) represented by an independent L, or
  (b) advised in writing to consult with an independent L.

Question 23

Sexual Relations with Clients

Answer 23

A L cannot have sexual relations with a current C unless a consensual sexual relationship existed before the rep.

Question 24

Organization as Client

Answer 24

A L retained by an org represents the org, not an employee, and must act in the best interests of the org.

Question 25

Organization as Client (Reporting Violations)

Answer 25

When a L is aware of a matter that: 1. violates the law or a legal obligation and 2. is likely to result in substantial injury to the org, the L **must** “report up” to a higher authority in the org. If the highest authority within the org refuses to change course: * Under the _ABA_, the L **may** report outside of the org, if it is necessary to prevent sunstantial injury. * In _CA_, the L **cannot** report outside of the org, unless it is necessary to prevent death or substantial bodily harm.

Question 26

Mandatory Withdrawal

Answer 26

* A L must withdraw from representing a C if: (a) discharged, (b) a physical or mental condition of the L exists (ABA: materially impairs the rep; CA: unreasonably difficult to effectively carry out the rep), or (c) continuing the rep will violate an ethical rule or other law. * Under the *ABA*, a L must also withdraw if the C seeks using the L’s services to commit a crime or fraud despite a discussion w/ the C. * In *CA*, a L must also withdraw if he knows that the C is bringing an action 1. without probable cause 2. for the purpose of harassing or maliciously injuring a person.

Question 27

Permissive Withdrawal

Answer 27

* A L may withdraw from representing a C if: (a) the C has used the L’s services to commit a crime or fraud, (b) the rep has been rendered unreasonably difficult by the C, or (c) the C fails to substantially fulfill an obligation after reasonable warning (i.e. payment of legal fees). * Under the *ABA*, a L may also withdraw if: (a) the withdrawal will not materially damage the C’s interests, (b) the C persists in a course of action that the L reasonably believes is criminal or fraudulent involving the L’s services, or (c) other good cause exists. * In *CA*, a L may also withdraw if: (a) the C freely and knowingly consents, (b) the C persists in a criminal or fraudulent course of action, (c) the C insists on a claim that is unwarranted and cannot be supported by a good faith argument, or (d) continuing the rep will likely violate an ethical rule.

Question 28

Proper Withdrawal

Answer 28

Proper withdrawal requires the L to: 1. provide timely notice to the C, and 2. promptly return any unspent legal fees and all of the C’s papers (e.g. case files) and property.

Question 29

Duty of Candor to the Court

Answer 29

A L must not knowingly: (a) make a false statement of fact or law, (b) fail to correct a false statement, (c) fail to disclose controlling adverse legal authority, or (d) offer or use false evidence.

Question 30

Witness Perjury

Answer 30

* A L cannot knowingly allow the witness to testify falsely. * However, when a criminal D wants to testify on his own behalf (and the L knows he will commit perjury), the L must: 1. try to persuade the C to not commit perjury, 2. attempt to withdraw from the case, and 3. if attempt to withdraw is unsuccessful, then: (x) Under the ABA, the L must tell the court (including confidential info). (y) In CA, the L must allow the D to testify in narrative fashion (cannot disclose confidential info to the court).

Question 31

Filing Frivolous Claims

Answer 31

* A L cannot file frivolous claims, defenses, arguments, or positions with the court. A good faith argument for a modification of existing law is not deemed frivolous. * In CA, the rule also specifically prohibits positions that lack probable cause and are intended to harass or maliciously injure.

Question 32

Obstructing or Altering Discoverable Evidence

Answer 32

A L cannot unlawfully: 1. obstruct another’s access to evidence, or 2. alter, destroy, or conceal a document/material with evidentiary value.

Question 33

Improper Influence

Answer 33

A L cannot seek to influence a judge, juror, prospective juror, or other official.

Question 34

Proper Discovery Requests & Compliance

Answer 34

* Undre the *ABA*, a L must not make a frivolous discovery request and must reasonably comply with proper discovery requests, * In *CA*, there is no equivalent rule.

Question 35

Payments to Witnesses

Answer 35

* A L cannot make payments to a witness contingent upon the content of the testimony. * However, a L may pay a witness for reasonable (a) expenses, (b) compensation for loss of time, or (c) fees to an expert witness.

Question 36

Lawyer as Witness

Answer 36

A L cannot act as trial counsel when he is likely to be a necessary witness, unless: (a) the testimony relates to an uncontested issue or his legal services, (b) the L’s disqualification would create a substantial hardship on the C (ABA), or (c) the C gives informed written consent (CA).

Question 37

Communication with a Represented Person

Answer 37

When a L knows that a person is represented by counsel in a matter, the L cannot speak to that person concerning the matter, unless the L has permission from person’s L.

Question 38

Trial Publicity

Answer 38

A L participating in a case cannot make statements to the public that could materially prejudice the case or influence jurors.

Question 39

Special Rules for Prosecutors

Answer 39

* Prosecutors must timely disclose any evidence that tends to negate guilt to the D. * Prosecutors may only proceed with a case if probable cause exists.

Question 40

Threat of Criminal, Administrative, or Disciplinary Charges

Answer 40

* In *CA*, a L cannot threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute. * Under the *ABA*, there is no equivalent rule.

Question 41

Amount of Lawyer’s Fees

Answer 41

* Under the _ABA_, a L’s fee must be reasonable. * In _CA_, the fee cannot be unconscionable or illegal. ## Footnote Factors to determine whether the fee is ethical include: the time, skill, degree of specialty; whether fee is fixed/contingent; relationship with the C; services performed and results obtained.

Question 42

General Fee Agreements

Answer 42

* Under the *ABA*, general fee agreements are not required to be in writing, but must be communicated to the C. * In *CA*, fee agreements over $1,000 must be in writing unless: (a) the C is a corporation, (b) the C waives the writing requirement in writing, or (c) the work is routine work for a regular C. * In *CA*, fee agreements must include: 1. how the fee is calculated, 2. the nature of legal services, and 3. the responsibilities of the L and C.

Question 43

Contingency Fee Agreements

Answer 43

* A contingency fee agreement is one that the legal fees will be paid out of any recovery the C receives. * A contingency fee agreement must: 1. be in a writing signed by the C, and 2. include: (a) how the fee is to be calculated, and (b) what expenses the C must pay. * In CA, the agreement must also state that the fee is negotiable. * Contingency fees are prohibited in: 1. domestic matters when payment is contingent upon securing a divorce, and 2. criminal cases.

Question 44

Fee Divisions Among Lawyers

Answer 44

Ls who are not in the same firm cannot divide a legal fee unless: * ABA: 1. the total fee is reasonable, 2. the C agrees in writing, and 3. the division is proportional to the work done by each L, or each L assumes joint responsibility. * CA: 1. the Ls enter into a written division agreement, 2. the C agrees in writing after full written disclosure, and 3. the total fee is not increased simply because of the fee division.

Question 45

Sharing Legal Fees with Non-Lawyers

Answer 45

A L may not share legal fees with a non-lawyer.

Question 46

Advertising Legal Services

Answer 46

An ad for legal services must: 1. not be false or misleading, 2. identify at least one L or law firm responsible for its content, 3. not state that the L is a specialist unless the L is certified as such, and 4. clearly include the word “Advertisement” (CA only).

Question 47

Solicitation of Clients

Answer 47

A L cannot solicit a person for professional employment by in-person, live telephone, or real-time electronic contact for pecuniary gain. ## Footnote *Does not include chat rooms or email that recipients may easily disregard.

Question 48

Compensation for Recommending Lawyer's Services

Answer 48

* A L cannot pay another person for recommending the L’s services. * However, a L may: (a) pay the usual charges of an approved L referral service, or (b) give nominal gifts as an expression of appreciation.

Question 49

Unauthorized Practice of Law

Answer 49

* A L shall not practice with or form a partnership to practice law with a non-lawyer. * A L cannot permit a non-lawyer to direct or control the L’s professional judgment.

Question 50

Non-Lawyer Assistants

Answer 50

* A L may delegate his task to a non-lawyer assistant, but he must supervise. * A L is responsible for the assistant's ethical violation if the L orders or ratifies the conduct.

Question 51

Employment of Disbarred Lawyer

Answer 51

* In *CA*, a L cannot employ a disbarred, or involuntary inactive L for any activity that constitutes the practice of law, including rendering legal advice, court appearances, negotiate C matters with third parties. * Under the *ABA*, there is no equivalent rule.

Question 52

Reporting Professional Misconduct

Answer 52

* Under the *ABA*, a L **must** report to the appropriate authority when: 1. the L knows, 2. another L violated the ethical rules, 3. that raises a substantial question as to their honesty, trustworthiness, or fitness as a L. * In *CA*, a L **must** report when: 1. the L knows of 2. credible evidence 3. that another L: (a) committed a criminal act, or (b) engaged in conduct involving dishonesty, fraud, deceit, misrepresentation, or misappropriation, 4. that raises a substantial question as to their honesty, trustworthiness, or fitness as a L. * In *CA*, a L **may** report another L for a violation of the ethical rules not covered under the above mandatory reporting requirement.