CA Bar Exam > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

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1
Q

Duties to Client

A
  1. Duty of Loyalty
  2. Duty to Communicate
  3. Duty of Confidentiality
  4. Duty to Avoid Fee Misunderstandings
  5. Duty of Competence/Care
  6. Duty of Diligence
  7. Duty to Safeguard Property
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2
Q

What is the duty of loyalty?

A

Attorney must avoid conflicts of interest and put client interests above all else.

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3
Q

How may conflicts of interest arise?

A
  1. Between current clients
  2. Between current client and another:

“Significant risk that representation of client will be materially limited by lawyer’s responsibilities to another client, former client, third party, or personal interests.”

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4
Q

What is the exception to conflict of interest?

A
  1. Reasonably believes he can provide competent and diligent representation without adverse effect,
  2. Not prohibited by law,
  3. Clients aren’t asserting claims against each other in same litigation, and
  4. Informed written consent from each client.
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5
Q

CA Distinction

When must a lawyer disclose in writing to his client potential conflicts, even if no risk of adverse representation?

A
  1. If attorney knows that any lawyer in his firm has relationship with party or witness
  2. If attorney knows/should know that opposing counsel is related to, lives with, is a client of, or in a relationship with the attorney.

NOTE: even with no-risk limitation, the attorney must still meet the normal exception requirements..

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6
Q

CA Distinction

Insurance

A

Lawyer can represent BOTH insurer and insured, as CA statute deems no conflict.

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7
Q

What is the general rule regarding corporate clients?

A

Lawyer must act in the best interest of the corporation (not the directors).

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8
Q

Can a lawyer represent directors/employees of a corporation?

A

Yes, if the conflict exception requirements are otherwise met.

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9
Q

Is a lawyer required to report misconduct of a corporation? Are there any exceptions?

A

Yes, if the misconduct is likely to result in SUBSTANTIAL INJURY to corporation.

However, they are not required to report if they reasonably believe it’s not in the corporation’s best interest.

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10
Q

CA Distinction

If a corporation fails to act after the attorney reports the misconduct, what can the lawyer do (ABA vs. CA)?

A

ABA - Lawyer may reveal information if necessary to prevent injury.

CA - May NOT report outside of corporation, except to prevent bodily harm/death. The lawyer should resign.

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11
Q

What is the rule regarding aggregate plea agreements/settlements?

A

A lawyer cannot represent multiple clients in an aggregate plea/settlement, unless each client gives written informed consent.

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12
Q

If the lawyer used to be a government employee, what’s the rule?

A

Cannot represent a client in a matter in which they personally and substantially participated as a gov’t employee, unless the agency gives informed written consent.

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13
Q

What’s the general conflict rule regarding attorneys in the same firm? Any exceptions?

A

The conflict of one attorney is imputed to all other attorneys in firm unless:

  1. Conflict is based on PERSONAL INTEREST, and no significant risk of materially limiting representation.
  2. Conflict is from a FORMER CLIENT at DIFFERENT FIRM, and ETHICAL WALL put up. WRITTEN NOTICE is required to client. (NOTE: CA requires that lawyer must not have SUBSTANTIALLY participated).
  3. Conflict is WAIVED by clients with INFORMED WRITTEN CONSENT.
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14
Q

If a lawyer leaves the firm, can the firm represent a client with adverse interests of a former client of the departed lawyer?

A

Yes, unless:

  1. Matter is substantially the same, or
  2. Any remaining lawyer has confidential information material to the matter.
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15
Q

What are the rules regarding lawyers and 3rd party compensation?

A

Lawyer cannot accept $ from 3rd party to represent a client unless client gives informed consent (writing required in CA).

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16
Q

What are the rules regarding personal conflicts and beliefs?

A
  1. Lawyer’s relative - Informed consent needed if opposing counsel is related by BLOOD or MARRIAGE.
  2. Personal Belief - Informed written consent needed.
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17
Q

CA Distinction

What are the rules for lawyers that have some relationship with opposing counsel?

A

Written disclosure required for:

  1. One lawyer is client of other lawyer
  2. Two lawyers cohabitate
  3. Two lawyers are intimate
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18
Q

What is the rule regarding sexual relationships with clients?

A

No sex unless consensual relationship occurred before became client.

CA distinction: Okay for spouse/domestic partner

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19
Q

What is the rule regarding business relationships with clients (+CA distinctions)?

A

Lawyer shall not enter business relationship with client, or obtain adverse interest to client unless:

  1. Terms are fair
  2. Terms disclosed in writing (CA also requires lawyer’s role disclosed)
  3. Client advised in writing to seek independent counsel (CA requires actual representation)
  4. Written informed consent from client.
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20
Q

Solicitation of gifts (+CA distinction)

A

Gifts cannot be solicited if SUBSTANTIAL. A lawyer cannot prepare an instrument (e.g., will) to receive a gift from a client unless client is RELATED.

CA - Lawyer may accept gift if client is (1) advised by another lawyer that gift is fair and without undue influence and (2) provides certificate of such

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21
Q

Can a lawyer obtain a proprietary interest in litigation?

A

No, except (1) to secure attorney fees through a lien, or (2) contingency fees in civil case.

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22
Q

Can a lawyer provide financial assistance to a client? (ABA vs. CA)

A

ABA - No financial assistance for LITIGATION, except:

  1. Contingency cases
  2. Indigency cases

CA - No financial assistance GENERALLY (personal/business), except:

  1. Loan after being hired (with promise to repay)
  2. Contingency
  3. Indigency
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23
Q

Can a lawyer limit malpractice liability? (ABA vs. CA)

A

ABA - Not unless client is advised of it or has independent counsel to advise him.

CA- No, period.

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24
Q

Can a lawyer settle a malpractice claim against him with a former client?

A

Yes, but only if:

  1. Advised in writing to seek counsel.
  2. Given opportunity to seek counsel.
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25
What is a lawyer’s duty to communicate with the client? (ABA vs. CA)
Must promptly inform client of any decision that affects informed consent, including status of case. CA - Lawyer can delay information to client if it would cause IMMINENT HARM.
26
What is the scope of a lawyer’s representation?
1. Client is responsible for substantive decisions. | 2. Lawyer is responsible for legal strategy.
27
Duty of Confidentiality and Exceptions (ABA vs. CA)
Shall not reveal client info, except: ABA 1. Informed consent 2. Impliedly authorized to represent client 3. Prevent death or substantial bodily injury 4. Prevent/mitigate crime that has/will result in substantial injury to $ or property AND client used lawyer’s services to do it 5. Court order 6. Secure legal advice re: ethics 7. Establish claim/defense in fight with client ``` CA 1. Informed Consent 2. Prevent crime of injury/death IF: A. Make good faith effort to persuade them not to B. Inform client of ability to reveal info C. Reveal only as much as necessary 3. Court Order 4. Claim/Defense in fight with client ```
28
In order to reveal confidential info of client to prevent injury or death in CA, what must a lawyer do first?
1. Make good faith effort to persuade them not to 2. Inform them of ability to reveal 3. Reveal only as much as necessary
29
Does CA recognize an exception to confidentiality for preventing/mitigating damage to money or property?
No.
30
What is the attorney-client privilege? What does it apply to?
It is an evidentiary privilege designed to facilitate legal services. Only applies to communications, not physical evidence.
31
If a 3rd party is present during confidential communications between lawyer and client, is the privilege broken? (+CA distinction)
Yes. However, in CA, the privilege can be used to stop eavesdroppers from testifying.
32
How does attorney-client privilege apply to corporations? (Fed common law vs. CA)
Fed common law: Privilege extends to employees/agents if authorized by corporation to speak to lawyer CA: Applies to employees/agents if they are the natural person to speak to lawyer, or they caused the liability and corp asked them to speak.
33
How long does attorney-client confidentiality last? (Fed common law vs. CA)
Fed common law: Until death (except in will contest) | CA: When estate is fully distributed
34
What exceptions are there to attorney-client privilege? (Fed common law vs. CA)
1. If lawyer services were used for crime/fraud 2. Dispute between lawyer-client 3. 2 or more parties consult on matter of public interest and communication is offered by one against the other 4. CA ONLY - Prevent crime likely to result in death or substantial bodily injury.
35
What is the standard for determining whether fees are appropriate under the ABA and CA?
ABA “Reasonable fees” CA “Not unconscionable”
36
What 3 things must a fee arrangement identify?
1. How fee is calculated 2. Nature of legal services 3. Responsibilities of lawyer/client
37
Is a writing required for a fee arrangement (ABA vs. CA)? Any exceptions?
ABA - no writing required CA - writing required over $1,000 unless: 1. Client is corporation 2. Made during emergency 3. Client waives writing requirement in writing 4. Prior client for similar services (fee is implied)
38
What are the general rules for a contingency fee agreement?
1. Writing 2. Signed by client 3. Method by which fee is determined (%) 4. Litigation/other expenses to be deducted 5. Whether expenses will be deducted before or after contingent fee calculated Additional CA rule: must be negotiable, except in negligence claims against healthcare provider.
39
Are contingency fees permitted in domestic or criminal cases?
No.
40
What are the fee splitting requirements for lawyer not in the same firm? (ABA vs. CA)
ABA 1. Division proportionate 2. Client consents in writing 3. Reasonable fee CA 1. Written agreement between lawyers 2. Client consents in writing 3. Total fee not increased due to division
41
Is fee sharing with non-lawyers permitted?
No.
42
Are “finders fees” (gifts for referral) permitted under the ABA or CA?
ABA No gift permitted unless registered referral service CA Gift permitted AFTER representation if no expectation of future referral.
43
What are the requirements for referral fees?
1. Agreement is reciprocal 2. Not exclusive 3. Client must be informed
44
What is the duty of competence and care?
Lawyer must possess reasonably necessary knowledge, skill and preparation for representation. CA Can’t intentionally, recklessly, gross negligently fail to perform competently (applies to mental, physical, and emotional ability). Rules permit consultation/referral to other lawyer.
45
Duty of Diligence
ABA - Lawyer shall act w/ reasonable diligence and promptness CA - Shall not intentionally, recklessly, or w/ gross negligence fail to act with diligence.
46
What is the lawyer’s duty to safeguard property?
Must safeguard client property AND keep it separate from their own.
47
How must client funds be handled?
Must be kept in client trust fund AND must keep accounting records for 5 years.
48
If client pays in advance of services rendered, how must payments be handled (ABA vs CA)?
ABA - must be put in trust account, and only withdrawn once expenses are incurred. CA - FLAT FEE can be put in operating account if lawyer advises client he can put the funds in a trust account IN WRITING. NOTE: if exceeds $1000, there must be a written agreement with client to put funds in operating account.
49
What is the timeliness requirement for handling funds owed to client?
A lawyer must promptly pay client funds owed (e.g., settlement proceeds). However, he may withhold funds he is due in contingency agreement.
50
If funds are disputed, what must a lawyer do?
He must return funds not in dispute, and place disputed funds in a trust account.
51
How is client physical property supposed to be handled?
1. Identify and label 2. Safeguard 3. Maintain journal 4. Not commingle
52
When is withdrawal from a case mandatory?
1. If it will result in ethics violation (ABA also mandates for “other laws”) 2. If mental/physical condition impairs representation 3. If lawyer is discharged 4. If client action is frivolous or used to harass/injure person (CA ONLY)
53
Does a lawyer have to withdraw from a case if it’s frivolous under the ABA rules?
No. Just in CA.
54
When is withdrawal permissive (for both ABA and CA)?
1. Action is fraudulent/criminal. 2. Client uses legal services for crime/fraud 3. Representation is made unreasonably difficult by client 4. Client fails to fulfill obligations and has been warned 5. Other good cause
55
When is withdrawal permissive (only under ABA)?
1. Morally repugnant 2. Can withdraw without adverse effect 3. Would impose unreasonable financial burden on lawyer.
56
When is withdrawal permissive (CA only)?
1. Client agrees to withdrawal | 2. Lawyer unable to work with co-counsel.
57
What are duties of lawyer upon withdrawal?
Notice to client, surrender papers/property, refund advance fees not yet earned.
58
What are the general requirements for advertising?
1. Must be truthful, not misleading 2. Contain name and office address 3. Label as advertisement
59
Is direct solicitation permitted? If so, under what circumstances?
Generally, no direct solicitation, except: 1. Free legal services 2. Family members 3. Clients or former clients 4. Non-deceptive letters to people known to have legal problems (must be labeled as ad)
60
What types of solicitation materials are prohibited in CA?
1. Express guarantees or warranties 2. Testimonials/endorsements unless there is a disclaimer that they don’t guarantee results 3. “No fee without recovery” communication, unless it also states whether client will pay litigation costs.
61
Can a lawyer imply/state that they are certified as a specialist in a field?
No, unless: 1. Certified by ABA or state, and 2. Certifying body is in communication.
62
Can you share a practice or partnership with a non-lawyer?
No. Also, legal fees cannot be shared, and a non-lawyer cannot direct/control a lawyer’s professional judgment.
63
When may a lawyer be liable for another lawyer’s conduct?
If lawyer: 1. Ratifies conduct 2. Is partner 3. Is supervisor and could have mitigated
64
What does a lawyer’s duty of fairness encompass with regard to other parties?
Not speaking to represented parties.
65
What does a lawyer’s duty of fairness meant to the court?
1. No false statements | 2. Must not fail to disclose legal authority
66
What does the duty of fairness mean to opposing counsel?
1. No falsifying/obstructing evidence 2. No frivolous discovery requests 3. Return mistaken mailings 4. No disobeying court rulings 5. No paying witnesses (unless reasonable)
67
What is the duty of decorum?
1. No influencing judges/jurors 2. No ex parte communications 3. No disruptive conduct 4. No communicating with jurors after trial who don’t want to speak
68
What are trial publicity rules?
Lawyer cannot make extrajudicial statement that lawyer knows/should know will become public and will likely materially prejudice the proceedings. Ex. 1. Character, reputation, criminal record of a party 2. Possibility of plea or confession 3. Opinion of guilt 4. Information that is likely inadmissible
69
Does a lawyer have an obligation to report ethics violations? (ABA vs CA)
``` ABA - MUST report CA - MAY report. HOWEVER, a lawyer must report THEMSELVES if: 1. Sued for malpractice 3x in a year 2. Found civilly liable for fraud 3. Sanctioned for more than $1000 4. Charged with fraud 5. Convicted of serious crime 6. Disciplined in another state ```
70
What is a lawyer’s duty to the public?
1. Promote public confidence 2. No criminal conduct 3. No frivolous claims 4. No harassment 5. No threats
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