Professional Responsibility in Law

Professional Responsibility

• Formation & Scope of Lawyer-Client Relationship: A lawyer-client relationship is formed when a person seeks legal services from a lawyer, and the lawyer either consents to provide services or knows the person would reasonably rely on them. In California, a lawyer's client is someone who reasonably perceives themselves as a client.
• Proper Scope of Lawyer-Client Relationship: A client determines the objectives of representation, but a lawyer decides the means to achieve those. A lawyer may limit the scope, if reasonable, with the client's informed consent.
• Advising or Assisting the Violation of Law: Lawyers cannot counsel clients to commit crimes, fraud, or violations of law (except in California—where it's permitted to advise and assist a client to make a good-faith effort to determine the validity, scope, meaning, application of a law).
• Duty of Competence: Lawyers must have the necessary knowledge, skills, and preparation to effectively represent clients. They should keep abreast of changes in the law and relevant technology (ABA). In California, a lawyer can only be disciplined if they act with intentional, reckless, or gross negligent conduct. Failure to perform duties with competence can result in discipline, disqualification from a case, and malpractice lawsuits.
• Duty of Communication: Lawyers must keep clients reasonably informed about significant developments in their representation, including when informed consent is required. They must comply with requests for information (e.g., phone calls), consult with the client on strategy, and inform the client of any actions not permitted by ethical rules. All settlement offers must be conveyed to the client.
• Duty of Diligence: Lawyers must act with reasonable diligence and promptness in pursuing a case or matter to a reasonable conclusion. In California, a lawyer cannot intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence.
• Duty of Confidentiality: Lawyers must maintain the confidentiality of all information relating to the client's representation. Confidential information can be disclosed if the client consents, required by law, to defend a malpractice action, to prevent death or substantial bodily harm, to prevent client fraud, or to secure legal advice. California also recognizes additional circumstances (e.g., necessary to prevent a crime, potentially resulting in death or serious injury).
• Duty to Safeguard Property: Lawyers must keep client funds and property separate from their own. All client funds (including advances of fees, costs, and expenses) must be kept in a separate trust account, and returned to a client on demand. Fees must be reasonably calculated. In California, a lawyer is prohibited to withhold a client's case file for the purpose of collecting fees.
• Conflict of Interest: Lawyers owe a duty of utmost loyalty to their clients and should avoid conflicts of interest. Disclosing conflicts or obtaining informed client consent are mandatory in many situations.
• Organization as Client: Lawyers representing organizations have a fiduciary duty to act in the best interest of the organization and should disclose identities of adverse constituents.
• Mandatory Withdrawal: Lawyers must withdraw from representing a client when discharged, under certain physical or mental conditions, when representation violates ethical rules or the law, when the client's actions are unreasonable or without probable cause, or to prevent misconduct.
• Permissive Withdrawal: Lawyers can withdraw from a representation for good cause, including client criminal or fraudulent behavior, difficulty with the case/client, when the representation is unreasonably difficult, or when representation is too financially burdensome.
• Duty of Candor to the Court: Lawyers must act honestly and truthfully in their dealings with the court. Making false statements, failing to correct false statements, failing to disclose a material fact, or offering false evidence is unethical.
• Witness Perjury: Lawyers must take remedial measures if they believe a witness is committing perjury, unless it involves a criminal defendant with constitutional concerns or they reasonably believe the testimony is false.
• Ex Parte Communications: Lawyers must not communicate with a tribunal (judge, jury, etc.) about a case's merits without all parties present, unless authorized by law.
• Obstructing or Altering Discoverable Evidence: Lawyers cannot obstruct, alter, or conceal evidence.
• Improper Influence: Lawyers cannot try to unlawfully influence a judge or jury/prospective juror, or otherwise unlawfully induce a witness to testify or otherwise impede the due process of a legal proceeding.
• Proper Discovery Requirements/Compliance: A lawyer has a duty to comply with proper discovery requests.
• Payments to Witnesses: Lawyers cannot offer witnesses excessive payments or induce them to testify untruthfully.
• Lawyer as Witness: A lawyer should avoid acting as a witness in the case they represent unless an exception applies (a necessary witness to an uncontested issue, or to the nature and value of the lawyer's work, or with the client's informed consent). CA allows a lawyer to act as a witness in specific situations.
• Communication with a Represented Person: Lawyers must not speak about a represented person's case/matter to the unrepresented person without their attorney's authorization.
• Trial Publicity: Lawyers cannot make extrajudicial statements that create a significant risk of material prejudice to the case, unless it is to protect the client from substantial prejudice or to aid the public's access to relevant information.
• Special Rules for Prosecutors: Prosecutors must follow special rules for conducting criminal cases to ensure that they present evidence and accusations fairly. They MUST timely disclose exculpatory or mitigating evidence, advise an accused of their rights, and take appropriate steps where convicted defendants are wrongly convicted.
• Financial Assistance & Loans to Clients: Lawyers may only advance expenses (or provide loans to a client, in certain situations). They should not make loans or provide financial assistance for other reasons.
• Payment of Legal Fees by a Third Party: Compensation to a lawyer for a client can be provided by a third-party but must comply with client consent and lawyer independence requirements.
• Serving on the Board of a Client's Organization: A lawyer who serves on a corporate board must balance the duty to the organization with the duty to their clients ethically, appropriately balancing their interests and exercising sound judgment, due diligence.
• Aggregate Settlements & Pleas Attorneys must get informed client consent before reaching aggregate settlements or pleas that involve multiple clients
• Confidentiality Concerning a Lawyer's Services: A lawyer's communication with a client must not include false or misleading information or material omissions to avoid deception, unless otherwise permitted by law.
• Solicitation of Clients: Solicitations of clients in-person, by telephone, and real-time electronic contact are not permitted, unless certain exceptions apply.
• Conflicts of Interest: A lawyer's conflicts of interest must be proactively avoided and disclosed appropriately.