Professional Responsibility

Question 1

What 5 main duties does the Attorney owe to the Client?

Answer 1

1. Duty of Loyalty
2. Duty of Competence
3. Duty of Financial Integrity
4. Duty to Communicate
5. Duty to Inform Client of Settlement Offers

Question 2

What is the Duty of Loyalty?

Answer 2

The duty of loyalty is one owed by a lawyer to a client.

It requires lawyer to
- exercise her professional judgment solely for the benefit of the client,
- free from compromising influences and loyalty.

Includes duty to resolve any conflicts of interest.

Question 3

When does a Concurrent Conflict of Interest (Actual Conflicts) exist?

Answer 3

Concurrent conflict of interest exists when
(1) the representation of the client will be directly adverse to the interest of another client; or
(2) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interest or the interest of another client.

Question 4

When may a lawyer still undertake representation where there is a concurrent conflict of interest?

Answer 4

Lawyer may still undertake representation if:
1. The lawyer reasonably believes he can competently and diligently represent each client;
2. The representation is not prohibited by law
3. The representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case; and
4. Each affected client gives informed written consent.

Question 5

When does a Potential Conflict exist?

Answer 5

A potential conflict exists when
- the lawyer suspects that an actual conflict may exist,
- but his or her representation has not yet been materially limited.

Question 6

When is representation proper in the face of a Potential Conflict of interest?

Answer 6

Representation is proper so long as
- a reasonable attorney would believe
- that the representation can be accomplished without violating the rules or law.

Question 7

What are the 2 types of Withdrawal?

Answer 7

Permissive and Mandatory.

Question 8

What are the situations where Permissive Withdrawal would apply?

Answer 8

A lawyer MAY withdraw:
(1) if it can be accomplished without material adverse effect on the client’s interests.
(2) where the client refuses to perform, after reasonable notice, including failure to pay attorney’s fees.
(3) If the client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent.
(4) If the lawyer’s services were misused in the past even if that would materially prejudice the client.
(5) If a physical or mental condition makes effective representation difficult.
(6) if the client insists upon an action that the lawyer considers repugnant or with which lawyer has a fundamental disagreement.

Question 9

What are the responsibilities of an attorney who withdraws from a matter?

Answer 9

An attorney who withdraws from a matter:
- must take reasonable steps to protect client’s interest and must give the client reasonable notice of withdrawal.
- must return all papers and property to which the client is entitled.
- must provide client’s case files to the client’s new counsel.

Question 10

Is an attorney subject to discipline if they refuse to turnover, or decide to withhold, a client’s case files until the outstanding legal fees are paid?

Answer 10

YES.

The case file must be provided to the client’s new counsel.

Question 11

When is Withdrawal Mandatory?

Answer 11

Withdrawal is mandatory (or the representation must be declined) if:
(1) the representation will result in a violation of the Rules of Professional Conduct or some other law
- (including filing frivolous actions)
(2) the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client; or
(3) the lawyer is discharged.

Question 12

Regarding withdrawal, continued representation, and crime/assisting in a crime:
When is withdrawal mandatory and when is it permissive?

Answer 12

Mandatory:
- if attorney’s continued representation of a client would require her to commit or assist in committing a crime.
- MUST withdraw.

Permissive
- if attorney THINKS the client is acting
criminally/fraudulently, but lawyer is not assisting in the crime.
- MAY withdraw.

Question 13

What is required of a lawyer’s duty of loyalty that he owes to Corporations/Organizations?

Answer 13

A lawyer must act in the best interest of the entity
- even if an officer, employee, or other associated person acts in a manner contrary to the entity’s best interest.

Question 14

A lawyer who has reason to know that an agent of the entity is acting against the entity’s best interest in a manner that is illegal and immutable to the entity’s best interest, or against the legal obligation the agent has to the entity, must act ___?

Answer 14

Must act reasonably in the best interest of the entity.

Question 15

What must a lawyer do if an officer or employee of the corporation/organization violates securities law?

Answer 15

The lawyer must:
(1) report the matter to the CEO or Chief Legal Counsel
(2) go to the Board of Directors or the highest authority in the corporation, or
(3) report the matter to the SEC if doing so would reasonably prevent fraud or substantial injury to the organization and investors.

Question 16

What must a lawyer do to resolve any conflicts regarding their professional liability insurance or lack thereof?

Answer 16

A lawyer who knows (or reasonably should know) that he does not have professional liability insurance:
- shall inform a client in writing, at the time of the client’s engagement of the lawyer, that lawyer does not have liability insurance.

If lawyer subsequently learns he has no liability insurance, he must inform the client in writing within 30 days.

Question 17

What are the 4 exceptions to the liability insurance rule?

Answer 17

Exceptions to the liability insurance rule:
(1) representation limited to 4 hours or less
(2) government or in-house lawyer working in such capacity
(3) emergency representation; or
(4) where the lawyer informed the client of such in a previous representation of that client.

Question 18

Do an attorney and all the other members of the attorney’s firm share conflicts with one another?
(Imputed disqualification/conflicts)

Answer 18

Yes.

Question 19

What are the 4 exceptions to the liability insurance rule?

Answer 19

Exceptions to the liability insurance rule:
(1) representation limited to 4 hours or less
(2) government or in-house lawyer working in such capacity
(3) emergency representation; or
(4) where the lawyer informed the client of such in a previous representation of that client.

Question 20

Which attorney at a firm does an imputed conflict follow?

Answer 20

An imputed conflict follows the attorney who created it

Question 21

What are the 2 exceptions to the imputed conflict rule?

Answer 21

(1) when a conflict arises from previous government services; and
(2) when the conflict arises from a purely personal relationship that would not affect representation by others in the firm, and an “ethical wall” is created around the conflicted person.

In either event, notice must be given to all affected clients.

Question 22

What is the rule regarding conflicts of interest and sexual relationships with clients?

Answer 22

A lawyer must not enter into a sexual relationship with a client. UNLESS the relationship predated the representation.

If the relationship predates representation, the lawyer must still not allow the relationship to affect his judgment or representation of the client.

Question 23

What is the rule regarding conflicts arising from lawyers getting gifts from a client?

Answer 23

Lawyers shall not
- solicit any substantial gifts from a client, including a testamentary gift,
- or prepare on client’s behalf an instrument giving the lawyer or a person related to the lawyer any substantial gifts
~ unless the lawyer or other recipient of the gift is related
to the client.

Question 24

What is the rule governing conflicts involving attorneys having a stake in the outcome of the case/proprietary interest in the outcome?

Answer 24

An attorney must not have a proprietary interest
- in the cause of action, or
- the subject matter of the litigation
- except for matters taken on contingency.

Question 25

What is the rule regarding conflicts related to lawyers and publicity rights?

Answer 25

A lawyer - cannot contract for publicity rights of the client - relating to the representation - until the representation of the client has ended.

Question 26

What 4 things are required so that a lawyer can enter into business transactions with a client?

Answer 26

An attorney can enter into business transactions with a client as long as (1) the terms are fair to the client (2) the terms are fully disclosed in an understandable writing (3) the client has the opportunity to consult an outside attorney; and (4) the client provides informed written consent.

Question 27

What is the rule regarding conflicts of interest relating to an attorney’s duty to Previous Clients?

Answer 27

An attorney - owes a continuing duty - to preserve information gained in confidence - during former representation of a client.

Question 28

What is required of an attorney’s Duty of Confidentiality?

Answer 28

A lawyer must not reveal confidential information relating to the representation of a client.

Question 29

What are the 4 exceptions to the Duty of Confidentiality?

Answer 29

Exceptions: (1) Consent - client gives express or implied consent to disclose info after consultation. (2) Disclosure Necessary to Protect Lawyer (3) Disclosure to Prevent Future Crime or Fraud (4) Compelled

Question 30

What are some example situations where Lawyer may need to disclose information to protect themself?

Answer 30

Lawyer may disclose information if the disclosure is necessary to protect themself. Examples: - client is bringing a malpractice claim against lawyer - lawyer faces a disciplinary action (can disclose info to prove they acted within the rules) - when client refuses to pay and lawyer files suit to recover fees.

Question 31

Under the ABA exceptions, what info can lawyers disclose under the Disclosure to Prevent Future Crime or Fraud exception to the duty of confidentiality?

Answer 31

Under the ABA exceptions, lawyer may disclose - information regarding future crime likely to cause imminent death or substantial bodily harm; or - a future crime or fraud to prevent or rectify substantial financial loss.

Question 32

In California, what info can lawyers disclose under the Disclosure to Prevent Future Crime or Fraud exception to the duty of confidentiality?

Answer 32

In CA, an attorney may reveal confidential information relating to the representation of the client - to the extent that the lawyer reasonably believes - is likely to result in death or substantial bodily injury. However, if reasonable to do so, lawyer must (1) make a good faith effort to persuade client not to commit the act; and (2) inform client of the decision to disclose the information.

Question 34

When would a lawyer be Compelled to disclose under the Compelled exception to the duty of confidentiality?

Answer 34

A lawyer is required to reveal client confidential info when compelled to do so - by law - by final court order - or where controlling ethical duties demand it.

Question 35

How is the Duty of Confidentiality different from the Attorney-Client Privilege?

Answer 35

Duty of Confidentiality: - Ethics rule - lawyer required to keep info confidential unless exemption applies. Attorney-Client Privilege: - EVIDENCE rule - prohibits court or other gov tribunal from compelling the reveal of confidential communications between an attorney and client. - survives death of the client (in CA, terminates once client’s estate is settled).

Question 36

What is required of a lawyer under the Duty of Competence owed to clients?

Answer 36

An attorney must act - competently and with care in handling all legal matters for her client. - with the necessary legal knowledge, skill and thoroughness, and preparation reasonably necessary for the representation. - on behalf of a client with reasonable diligence and promptness, and must see the matter through to completion.

Question 37

Under the Duty of Competence, what must an attorney do if not well versed in the relevant law of a case?

Answer 37

When not well versed in the relevant law, lawyer cannot take on a matter pertaining to that law. UNLESS (1) he can put in time to learn it without undue expense/delay to the client, or (2) he associates with attorneys who are competent in the area of law at issue, or (3) lawyer/client is in an emergency.

Question 38

What are the rules governing Financial Assistance to Client or Prospective Clients under the lawyer’s Duty of Financial Integrity?

Answer 38

Under ABA modern rules: - lawyer subject to discipline for rendering financial aid to a client in the context of contemplated or pending litigation. - Exception: when representing an indigent client or working on a contingency. Under California Rules: - lawyer is forbidden from paying the personal or business expenses of a prospective client. - lawyer may lend money to their actual client for any purpose, if the client promises in writing to repay the lawyer.

Question 39

Under the Duty of Financial Integrity, a lawyer cannot accept compensation for representation from someone other than the client unless what 3 things are present? (Payment for legal services by Third Party)

Answer 39

Lawyer cannot accept compensation from 3rd party for representation of a client unless (1) client gives informed consent, (2) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship, and (3) the information relating to the representation of the client is protected under client confidentiality rules. CA requires the consent to be in writing.

Question 40

What is required to be included in non-contingency fee agreements?

Answer 40

Both ABA and CA require that fee agreements include (1) how the fee is calculated (2) what services are covered, and (3) the duties of both the lawyer and client.

Question 41

California requires non-contingency fee agreements to be in writing, unless what 4 things are present?

Answer 41

Required to be in writing unless (1) fee is under $1000 (2) agreement is with a corporate client (3) the agreement is for routine services for a regular client, and (4) it is an emergency or impractical for the agreement to be written.

Question 42

Contingency fee agreements must be in writing and signed by the client. What must the writing include?

Answer 42

Writing must include (1) the attorney’s % if they win, and how that fee is to be calculated; (2) what expenses are to be deducted from client’s recovery award; (3) whether attorney’s % is taken BEFORE or AFTER expenses are deducted. CA extra requirements: Agreement must include (1) how client will be charged for other related legal work; and (2) a statement that the attorney’s fees are not set by law and are negotiable. CA also allows for “charging liens” to secure payment.

Question 43

Is a lawyer subject to discipline for using a contingency fee in domestic relations case where the contingency is -the securing of a divorce -or the amount of the property settlement?

Answer 43

Yes.

Question 44

Is a lawyer subject to discipline for using a contingency fee in a criminal matter where the outcome determines the fee?

Answer 44

Yes.

Question 45

Lawyers splitting their legal fee with Non-Lawyers is not allowed. But there are 3 exceptions. What are they? (Fee Splitting with non-lawyers)

Answer 45

Exceptions: 1. Attorney’s fees may be shared with non-lawyers with respect to (1) death benefits paid for a reasonable time to a deceased lawyer’s family or heirs by his firm based on his work for the firm, and (2) for pensions and salaries of non-lawyer employees at the firm 2. Lawyer may share court awarded legal fees with a non-profit organization that employed or recommended the lawyer. 3. Lawyer may pay usual charges of qualified lawyer referral services.

Question 46

Fee Splitting with another lawyer in the same firm is generally permissible. What is the rule in CA regarding fee splitting with another lawyer in a DIFFERENT firm?

Answer 46

In California, a lawyer may share his fee with another lawyer from a different firm as long as - the client agrees after full disclosure of the fee splitting agreement, - the total fee is not increased because of the split, and - the fee itself is not unconscionably high.

Question 47

Under the Duty of Financial Integrity, does a lawyer have a duty to NOT make a fee arrangement that could curtail services in the middle of the relationship and place the client at a bargaining disadvantage?

Answer 47

Yes.

Question 48

Under the ABA model rules, attorney’s fees cannot be unreasonable, and the attorney is subject to discipline for charging unreasonable fees. What are the 3 factors that determine the reasonableness of fees?

Answer 48

Reasonableness of fees takes into account (1) the labor, novelty, difficulty, skill, and timing required; (2) the result obtained, the experience of attorney, and other demands of the attorney; and (3) the existence of a fee arrangement.

Question 49

Are attorney fee disputes required to be arbitrated?

Answer 49

In California, yes. Under ABA rules, it is encouraged but not required.

Question 50

Is a lawyer subject to discipline for attempting to prospectively limit malpractice liability to the client?

Answer 50

Yes. Lawyer would be subject to discipline.

Question 51

What are a lawyer’s duties under the Duty of Financial Integrity relating to Client Trust Accounts?

Answer 51

Lawyers have a duty to safeguard client’s property by labeling and storing it in a safe place. Money held by client must be placed in a trust account and CANNOT be commingled with other funds.

Question 52

What are a lawyer’s duties under the Duty of Financial Integrity relating to Record Keeping?

Answer 52

Attorney has a duty to - keep good records for his client - to render accountings - to notify client of money received on his behalf - promptly pay money due to the client. CA has a 5 year record retention policy.