Professional Responsibility Flashcards

Question

_Duty to Communicate_ ## Footnote *Under ABA and CA law, a L must*

Answer 1

U/ [B], a L mst (1) **keep C prmptly infrmd** of any decision or circ to whch th C mst prvde **IC**, and (2) **reas consult w/ C about means by which to accomplush C objectives**. * _{H, A should have communicated to O the p and a conflicts of rep'ing all 3 pts before meeting with them. Thus, A violated her duty to comm with O.}* * _{H, L did nt reas consult with P about hw nt playing despite a valid and enforceable K, and ignoring a court order, affected his objective to re-negotiate salary. The prelim injuction req P to play under Kterms was likely uncx b/c forcing P to play might constitutue “inviluntary servitude” under the 13A. Yet, until its uncx'lity was judicially declared, P needed to comply with the court order. P could not raise the q of the order’s uncx in collateral proceedings on appeal from a judgement of conviction for contempt of the order by ignoring the order prior to challenging it with a court.}* U/ [B], a L shall explain a matter to the extent reas nec to permit th C to make informed decisions reg the rep AND shall: 1. Prmtly inform the C of any decision or circ req C's IC (incl, settlement offers, and where joint C's, L mst inform each C of settlement offer and make sure the C's agree on the diviosn of the settlement b4 accepting. 2. Reas concult w/ C abt means by whch C's objectives are to be accomplished, 3. keep C reas informed about the status of the matter 4. Promptly comply w/ reas requests for info, and 5. Consult w/ C abt any relevant limitation on the L's conduct whn the L knws that the C expects assistance not permitted by the Rues of Prof Conduct or other law.

Answer 2

A L mst act w/ the **care**, **skill, prep, thoroughness, and dil** of a **reas L u/ the circs**. To avoid violating the duty of comp, a L can (1) **achieve competence through adequate prep**, or (2) **consult with a L of est competence in the field**. *_{H, A was a [] att. No facts indicated A had experience in []. She could adequately achieve the requisite level of compt by prep or ass with [] counsel. Thus, A did not violate her duty of competence.}* _{H, L, an associate, acted with care, skill, and preparation of a reas L when he ressearched for a motion to compel. H/e, he lacked diligence and thoroughness when he told P that he “thought” the motion would be denied and “may” igve rise to sanctions. To avoid violating duty of comp, L needed to prepare more adequately to know with certainty the motion outcome, or follow instructions from P, a supervising partner with more experience.}_{Thus, L could follow P’s instructions to establish competence.}

Answer 3

A L hs a duty to **diligently, promptly, and zealously pursue the matter of the C** to completion. A L shld take whatever lawful and ethical measures are required to vindicate a C's cause or endeavor.

Answer 4

1. _Duty to Protect C's property_: A L mst safeguard her C's prop. A C's prop mst be id'd as sch and appropriately safeguarded. 1. _Money_: A L mst deposit her C's money in a sep C trust account. This incl both advances for fees or expecnses not yet incurred from the C and money received on the C's behalf. 2. _Duty to Promptly Notify and Deliver_: Upon receiving funds or other prop in ewhich a C or 3P has an intrst, a L shall promp\tly notify the C or 3P. 3. _Duty to Withhold_: If the C disputes a fee or a 3P hs a lawful claim against C prop in the L's possession, the L mst withhold the disputed portion in the sep C trust account. 4. _Duty to Keep Good Records_: A L mst keep good records, render accountings, notify C of money received on her behalf and to promptly pay money due to her. In **CA**, mst keep records for 5yrs after final distribution and make records avail to State Bar for audit.

Answer 5

_Fee Agreement_ - U/ [b], contingent fee a/ments must be in writing & state the method by which the fee is to be determined. In **CA**, whr it is reas fores total expense to a C, incl. any L fees, will **exceed $1k**, the services K mst be **written** and incl. (1) **basis of comp** incl. hrly rates, stat fees, & other charges, (2) **gnrl** **nature of legal services** provided, & (3) **L & C K'ual responsibilities**. _Unreasonable / Unconscionable_ **ABA**, L cannot charge **unreas fees**. Factors in determining whther fee is reas incl. (1) **skill,** **time, experience, &** **difficulty**, (2) likelihood rep will **preclude L from accepting other employment**, (3) **customary fee in the locale** for the kind of work, (4) **amount involved** & results obtained, (5) time limits imposed by C or circs, (6) nature & length of the C prof. r/ship, (7) L's experience, reputation, and ability, and (8) whether fixed or contingent fee. **CA** prohibits **unconscionable fees**, & uses factors similar to ABA to determine uncon fees, in add to following factors: (1) **whthr L engaged in "fraud or overreaching" in negotiating** or settling the fee, & (2) whthr L has failed to disclose mat facts.

Answer 6

A **CF req** the **C** to pay a fee **only if there is a favorable outcome**. U [B], a CF a/ment must (1) be in **w**, ~ **by C**, & (2) state the **method by which the fee is calculated**, incl. (a) whether **$ deducted b4 or after the fee,** (b) **% to L,** & (c) **expenses C liable for regardless of outcome**. In **CA**, a/ment mst also (3) state the **L's % is negotiable** & (4) how other, **non-covered expenses will be paid**. _Prohibited Cases_: U/ [B], CFAs are **prohibited** in **criminal** and **domestic relations** cases.

Answer 7

_Fee Splitting with Ls_: **_ABA_** allws fee splitting sla (1) **C consnts** (2) **total fee is reas**, and (3) **fee is proportional** to the work done. _H,T In **_CA_,** a L shall not divide fees with a L who is not a partner, ass., or s/holder, unless (1) **C consnts in W at time of a/ment** or asa reas prac after full disclsre of the fact a division of fees will be made, and (2) **total fees are nt increased** solely by reason of a division and nt uncon; (3) **C is infrmd of the id of fee-splitting Ls and terms of division**, and (4) the **Ls enter into a written a/ment** to divide the fee. _H,T _Fee Splitting with Non-Ls_: U/ [B], a L or LF **may not share fees with non-Ls, except** via a **compensation plan**, even though based on a profit-sharing arrangement. _H,T

Answer 8

U/ _ABA_, a L **shall not give anything of value** to a person for recommending the L's services, except a L may refer Cs to another L or a non-L pursuant to an a/ment that provides for the other person to refer Cs to the L, if (1) the **reciprocal referral a/ment is not exclusive**, and (2) the **C is informed** of the existence and nature of the a/ment. _H,T In _CA_, a L **may pay a referral fee to an outside L** who refers a case if (1) **C knows all the terms and consnts in W**, and (2) **total fee is nt increased and nt unconscionble** b/c of the referral. _H,T

Answer 9

1. _No Duty to Accept Rep_: A L has no duty to accept rep, they are free to accept or reject any case. Exceptions incl. (1) a L has an ethical **duty to accept ct appointed rep unless there is good cause** (rep requires L to violate law or ethical rule, rep wld impose unreas fin burden on L, or L's prsnl feelings wld prevent effec rep), (2) a L **shld accept** the **cases of defenseless or oppressed** if only reason to refuse is selfish, and (3) ABA encourages **50hrs of pro bono work for indigent Cs**. 2. _Duty to Reject_: A L mst reject rep if (1) **rep requires L to violate a law or ethical rule**, (2) **P's motive is to harass or maliciously injure**, (3) **L knows P is pursuing a factually or legally frivolous claim** (h/e a claim is nt friv just b/c law is against L's pos if GF effort to change, modify or extend the law), (4) **L is incompetent**, (5) **prsnl feelings wld prevent effec rep**, or (6) **mental or physical condition will mat impair the rep**.

Answer 10

Gnrly, **C controls the objec of rep**, and makes substantive decisions, **L controls means** (tactical decisions) to accomplish those objec, **BUT mst consult with the C as to means by which the objectives are pursued**. A **L cannot counsel a C to engage** (or assist C) **in conduct L knows is crim, fraudulent, or a violation of any law**, rule, or ruling of a tribunal (_CA only_). Notw/standing the above, a L may: (1) **discuss legal conseq of any proposed course of conduct** with a C; AND (2) **counsel/assist C to make a GF effort to determine the validity, scope, meaning, application of law**, or (for _CA only_) application of a rule/ruling of a tribunal. +, in _CA_, L is permitted to advise and assist a C with complying with Ca laws even if such laws conflict with Fed or Tribunal law.

Answer 11

U/ [B], a Pros. is nt only an advocate, but a minister of justice. The Pros's respons incl. *[only mention those that apply]* (1) lay charges only whn supported by **probable cause**, (2) ensure the accused is afforded all Cx **due process rights**, (3) **disclose** to def and ct all knwn **exculp ev** tht tends to negate guilt or mit an offense, (4) assure accused is advised of **right to counsel** and give reas opp to obtain counsel, (5) nt attempt to obtain **waiver of pre-trial rghts** frm an unrep'd accused sch as rght to a prelim hearing, (6) **nt subpoena L** in grand jury or other crim proceeding to **present ev abt a C unless** reas believes (a) **not priv'd**, (b) **essential**, and (c) **no feas alternative**, (7) **disclose new**, credible, material **ev**, creating a reas likelihood that a convicted D did not commit the offense; if conviction w/in the pros's jx (a) **disclose** the **ev to the D**, unless the ct otherwise instructs, (b) **investigate** to determine wrongful conviction, and (c) **remedy a conviction** when **ev is clear and convincing**, (8) **investigate leads objectively.**

Answer 12

U/ **ABA/CA law**, a L participating in litigation is **not permitted to make an extra-judicial statement** (1) the L **knows** or reas should know **will be disseminated by means of public communication**, and (2) will have a **substantial likelihood of materially pj'ing an adjudicative proceeding**. U/ **ABA**, a Pros. must use **reas care to prevent law enforcement personnel, investigators, or other persons** associated with the crim case from **making extrajudicial statements** the pros. is prohibited from making. _H,T

Answer 13

A L has the duty to preserve and protect the dignity of the ct. _Maintaining Intregrity of Legal Profession_ U/ **CA law**, L **mst nt knowingly assist in**, solicit, or induce any **vioaltion of the RoPC** or CA Business and Professions Code. U/ **ABA**, it is **prof. misconduct** for L to **engage in conduct** (1) **pj to adminn of jstice**, (2) **involving dishnsty, fraud, deciet, or misrep,** or for a L to (3) **attempt to violate ABA**. _{H, X was dishonest, deceitful, or misrp’d the law or facts when she called O to imply she xould file a discrim suit, for the improper purpsoe of putting pressure on team to re-neg P’s contract, when X and Y both agreed there wasn’t a basis for the complaint. X filed a counterclaim to get O’s attention for tortios interference when P’s contract was valid and enforcabnle. X’s conduct brough disdaim to the legal profession and amin of justice because her conterclaim was frivolos.}

Answer 14

**ABA**, a L may nt knowingly (1) **make flse s/ment of mat fact or law to a tribunal** or **fail to correct** a false s/ment or mat fact or law prev made, (2) **fail to disclose to a tribunal controlling legal authority** knwn to L to be directly adverse to C’s pos and nt disclosed by opp counsel, or (3) **offer ev L knows is false**. **CA**, in presenting a matter to a tribunal, a L shall (1) employ, for the purpsoe of maintianing the causes confded to the L, such means only as are consisitent with truth, (2) not seek to mislead the judge, judicial officer, or jury by a fasle statmenet of fact or law, (3) not intentially misquote to a tribunal the language of a book, statute or deicsion, (4) nt, knwing in its invalidity, cite as authoriy a deicsion rtat hase been overruled or a statute that has been repealed or declare uncx, and (5) not assert prsnl knowedlge of the facts at issue, expect when testifying as a w. **California law** req a L to employ only means consistent with the truth, and never seek to mislead any judicial officer by a false s/ment of fact or law. _H,T

Answer 15

_Duty of Fairness to Opposing Party & Counsel_ U/ **ABA**, a **L shall nt fail to make reas diligent effort to comply w/ legally proper discovery request by an opp pty**. In **CA**, a **L shall nt supress ev L or Ls C hs legal ob to reveal or produce**. _{H, L knew doc requested by Smith had not been produced, and of no basis to refuse production. U/ ABA and CA , L shld prdce doc, and nt follow P’s instructions to interpose ...}*_{T, L shld produce the doc to avoid violationg duty of fairness to opposing party and counsel.}* _Threatening Disciplinary Charges_: **CA** law **prohibits Ls from**, and sbjcts thm to discipline for, **threatening to bring crim, admin, or disciplinary charges to obtain an advantage in a civil dispute**. There is **no similar prohibition under ABA**.*_{H, B .... B appeared to threaten disc action against A to obtain an advantage in the class action, a civil dispute. T, B could be subject to discipline under CA law.}* _Comms w/ Persons Rep'd by Counsel_: In course of a rep, a **L mst nt communicate abt th subject of rep w/ a prsn** (whthr or nt a pty to the proceeding) **the L knows is rep’d by another L in the matter**, unless L (1) **hs consent of other L**, or (2) is **auth by law** to do so. U/ **ABA,** consent of a rep'd organization’s L is not required for communications with a former constituent. CA – In Ca, the L may communicate with an unrepresented former employee or officer of an entity without consent & knowledge of the attorney representing the entity, but may not inquire about privileged communications the former officer or employee participated in while with the entity. _Return Materials mistakenly Delivered_:

Answer 16

_Advertising_ _False or Misleading_ * **_ABA_**: permts a L to advrtse usng **any frm of pblc comm** abt th L's servces tht is **nt false or misleading.** _H,T * In **_CA_**, thse L comms are presumed flse or misleading: (1) comms delivrd to a **pot. C in the hospital or suffring frm phys or mental stress**, (2) **mailings nt clearly labeled as ads that clearly seek fee-paying work**, and (3) comms containing **testimonials or endorsements w/out a disclaimer** they are nt a promise about the results in the pot C's case. _H,T

Answer 17

_Identity_: U/ **ABA**, all ads mst incl. the **name** and **office address** of **at least one L or LF.** _H,T _Clients' Names_: U/ **ABA**, regularly-rep'd C's names may be communicated in an ad with consent. _H,T _Ad Material Labeling_: * **ABA** allws advertising circulars sent in the **mail targeted** to thse knwn to be in need of partic legal services, the **outside envelope** mst incl. the words **"Ad Material"**. _H,T * **In CA**, **mailings** not clearly labeled as advertising that seek fee-paying work are **presumed false or misleading.** _H,T

Answer 18

_Specialization_: In an ad, a L is permitted to state the L "**specializes in**" a field of law ala the s/ment is not false and misleading, but **may not imply or state** s/he is **certified** as a **specialist** in a field of law, **unless** s/he is **certified** by an org approved by a state authority or accredited by the ABA, and identifies the certifying org name. _H,T _Special CA Restrictions_: CA laws prohibt ads that contain [(1) **guarantee or warranty** of the case outcome, (2) words or symbols that suggest **quick cash or settlement**, (3) **L or C impersonation w/out disclosing** it is an impersonation, (4) **accident or other event dramatization w/out disclosing** it is dramatization, and (5) **contingent fee offer** that does **not warn a C** who loses a case **must still pay litigation costs** if that is the arrangement.] _H,T

Answer 19

U/ _ABA/CA law,_ a L **cannt solicit fee-generating e/ment** by **in-prsn, live tlphne, or real-time electronic contact** frm a specific prospec C whn the L's significant reason for doing so is **pecuniary gain, unless** the prsn solicited (1) is a **L**, or (2) has a **family, close personal, or prior prof. r/ship.** _H,T _Agents_: A L must not use agents to solicit in a manner the L cannot. _H,T _Direct Mail_ A L may send a **truthfl and non-deceptive targtd ltr** to a pot C knwn to face a partic legal problem. _H,T _Prospect Cs_; A L must not coerce, harass, or solicit prosp Cs who indcte thy do nt wsh to be solctd. _H,T

Answer 20

U/ [**B**] a L may **collect an advance fee** in the form of a retainer, but unless the advance fee is a true retainer to reserve services, the L **must return any unearned portion**. _H,T

Answer 21

U/ **ABA** and **CA law,** it is **prof. misconduct for a L to engage in conduct involving deceit, dishonesty, fraud or misrep.** _H,T

Answer 22

U/ **_ABA_**, a L **may nt bring or defend a proceeding**, or assert, or controvert an issue, **unless there is a basis in law or fact that is nt frivolous**. An action is **friv** if the L is **unable to make a GF argument for a mod**, exten or reversal of existing law. _H,T **_CA_** law does nt allow a L to accept, seek or continue employment if the L knows osk the objective of emplyment is to present a defense or claim in litigation that is nt warranted under existing law, unless it can be supported by a GF argument for a mod, exten, or rev of existing law. **CA law** forbids a L from maintinging or counseling an action, proceeding, or defense that does nt appear legal or just, except for the defense of a prsn charged w/ a public offence. _H,T

Answer 23

U/ [B], a **L may nt assist another person in the unauth practice of law**. A **L may employ the services of paraprofessioanls** and delegate functions to them, **ala the L supervises** and **retains repsonbilitity for their work**. Considerations in det whthr an activity constitutes the prac of law incl: (1) **activity involves legal knowledge and skill** bynd tht whch the av layprsn possesses, (2) **activity constitutes services concerning binding legal rights or remedies**, and (3) **activity is trad perf by Ls**. Cts find these activiteis, whn done on behalf of anther, to constitute law practice (a) **appearing in jud proceedings**, (b) **engaging in settlement negotiations**, and (c) **drafting docs tht affect sub legal rights** or obligations. *_{H, A unlikely supervised K’s work because she was incompetent. A filed a counterclaim K primarily drafted. Drafting counterclaims was an activity a L ordinarily performed b/c counterclaim afftected the substantial legal rights or obligations of P. K likely drafted counterclaim using legal knowledge and skill, rather than fill in blacnks on a form. Drafting and suggesting questions to ask at the deposition was an activity a lawyer performed because what deposition questions to ask involved legal knowlefge and skill beyong that which the averager lawperson possesse.d}*

Answer 24

**ABA** req a **L who has knwldge of a violation** of the ABA MR tht raises a Q as to any Ls honesty, trustwrthness, or fitness as a L to **inform the approp prof authority**. **CA does nt req a L to report misconduct by another L**. _{H, B, counsel for _, heard the defense A planned to assert and ... She believed asserting the defense violated _. Though A served [did x], he never [engaged in any conflict of interest]. T, B was not required to report A to state bar u/ ABA or CA law.}

Answer 25

A L shall comply w/ PR Rules notwhithstanding the L acts at the direction of another prsn. **A subord L does not vioate Rules if subordinate acts in accordance w/ a supervisory L’s reas resolution of an arguable Q of professional duty**. In **CA**, the **subordinate mst comm prof. j/ment to supervisor** if s/he **believes** the supervisor’s **proposed resoultion violates the Rules.** _{Here, P, a partner, supervised L, an associate at ABC. P instructed L to file a motion to compel. Though L, a subordinate L, acted at P’s direction, L needed to comply with the Rules. After researching the motion, L “thought” the motion would be denied and “may” give rise to sanctions. P’s instructions to file the motion appeared reasonable since L did not know with certainty the motion would be denied or that sanctions would result. The Q in the motion could not reasonably be answered only one way, and P had more experience. In CA, L needed to communicate his prof. judgment to P before following P’s instructions, but the facts did not indicate L believed P’s instructinos violated the Rules.}_{Thus, P could ethically follow P’s instructions to file the motion under both ABA and CA law.}

Answer 26

U/ [B], **partners and supervising Ls mst ensure non-Ls employed or retained by**, or associated with, **the L or LF conduct themselves in a manner compatible with the rules of PR**. A **L is responsible for overseeing the work of non-L assistants**, and is **subject to discipline, if the L orders or ratifies wrongdoing**. _{H A re-hired K, a non-lawyer. Though K was a disbarred L with experience representing professional athelests and represented P in the past, A had an obligation to supervise K. It was improper for K to prepare the counterclaim when the K was valid and enforceable. By filing the counterclaim, A ratified K’s wrongdoing. K sat next to Anne at the despoition, passing notes after drafting the questions. A was unable to oversee K’s work since A lacked competence to prepare for, and take the depsoition.}

Answer 27

The right to counsel encompasses the right to be assisted by a reas competent attorney. An attorney is ineffecitve when (1) rep falls below an objective reasonableness standard, and (2) the deficient perf pj the D, resulting in an unreliable or fundamentally unfair outcome in the proceeding. H,T

Answer 28

_Mandatory Withdrawal_ _ABA_: A L **mst w/draw from rep**, and is sbjct to disc **if failure to do so wld result in violating ethics rules or other law**. U/ ABA, a L is **req to w/draw whn phys or mental condition mat impairs ability to represent the C**.*_H,T* _CA_: The L **mst w/draw if** (1) s/he **knws** (osk) **continued employment will violate CA rules of PR**, (2) the **L’s mental or physical condition renders it unreas difficult** to carry out e/ment effectively, and (3) a **L knws osk C is asserting a claim or defense w/out PC** and for the purpose of harassing or maliciously injuring any person.*_H,T*

Professional Responsibility Flashcards

(57 cards)