CA and Fed Ethics Comparisons PDF

CALIFORNIA PROFESSIONAL RESPONSIBILITY COMPARISON CHART  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 1. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA...

CALIFORNIA PROFESSIONAL RESPONSIBILITY COMPARISON CHART  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 1. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE Note: If there is no California difference mentioned, you can assume that the California rule is the same or substantially similar. REGULATION OF LAWYERS WHEN IS A LAWYER A lawyer is subject to The California rule SUBJECT TO discipline for: prohibiting harassment and DISCIPLINE? discrimination in Violating or attempting to connection with the violate the RPC, either practice of law differs as individually or through the follows: acts of another. It prohibits unlawful Committing a criminal act discrimination, that reflects adversely on harassment, and the lawyer’s honesty, retaliation on the basis trustworthiness, or fitness as of a protected a lawyer in other respects. characteristic. Engaging in any conduct A lawyer also must not that involves dishonesty, permit unlawful fraud, deceit, or discrimination by any misrepresentation. other lawyers or Stating or implying an ability nonlawyer employees in to improperly influence a the law firm in relation to government agency or the firm’s operations. official to achieve results by A lawyer who is the illegal or unethical means. subject of a disciplinary Engaging in conduct proceeding alleging a prejudicial to the violation of this rule must administration of justice. promptly notify the Knowingly assisting a judge/ State Bar of any judicial officer in violating criminal, civil, or the rules of judicial conduct administrative action or other law. premised on the same conduct. Engaging in harassment or discrimination in conduct related to the practice of law based on a protected characteristic (but this does not affect a lawyer’s ability to reject a case or engage in legitimate advocacy). 2. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE FORMATION, TERMINATION, AND SCOPE OF A LAWYER-CLIENT RELATIONSHIP AND BASIC DUTIES TO CLIENTS HOW IS A LAWYER- Express agreement. CLIENT RELATIONSHIP Implied agreement (the prospective client seeks legal FORMED? services, then reasonably believes a relationship exists based on the lawyer’s actions). Appointment by the court. PRO BONO SERVICE All lawyers are encouraged to provide pro bono service (the recommended amount is 50 hours per year) and to contribute financially to organizations that provide legal services to indigent individuals. However, these goals are aspirational; a lawyer is not subject to discipline for failing to provide pro bono services. ACCEPTING A lawyer must not seek to avoid There is no California APPOINTMENTS appointment by a tribunal to counterpart rule of represent a person except for professional conduct. good cause, such as: (1) However, in taking the representing the client is likely California Attorney’s Oath, to result in a violation of the RPC each lawyer promises or other law; (2) representing never to reject, for the client is likely to result in an personal reasons, the unreasonable financial burden cause of the defenseless on the lawyer; or (3) the client or or the oppressed. the cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relationship or the lawyer’s ability to represent the client. MANDATORY A lawyer must decline a The California rule adds REJECTION OR representation or must one more ground for WITHDRAWAL withdraw from representation if: mandatory withdrawal: The representation will The client is bringing an result in violation of the RPC action, conducting a or other law. defense, asserting a position in litigation, or The lawyer’s physical or taking an appeal, without mental condition substantially probable cause and for impairs the lawyer’s ability to the purpose of harassing represent the client. or maliciously injuring The lawyer is discharged by any person. the client.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 3. ABA RULE CALIFORNIA DIFFERENCE PERMISSIVE A lawyer may withdraw in any The main differences in the WITHDRAWAL of the following situations: California rule are as follows: (1) Withdrawal can be accomplished without It doesn’t include the material adverse effect on ground allowing the client’s interests. withdrawal where it can be accomplished without (2) The client persists in a material adverse effect criminal or fraudulent to the client’s interests. course of action involving Rather, withdrawal is the lawyer’s services. allowed if the client (3) The client has already used knowingly and freely the lawyer’s services to assents to termination of perpetrate a crime or fraud. representation. (4) The client fails substantially It doesn’t include the to fulfill an obligation to the “client insists on taking lawyer (for example, paying repugnant action” or bills) and has been given “unreasonable financial reasonable warning that burden on lawyer” the lawyer will withdraw if grounds. the obligation is not It lists a few other fulfilled. examples of good cause, (5) The representation has all of which would also been rendered be considered good unreasonably difficult by cause under the ABA the client. Rules (for example, the (6) The client insists on taking lawyer is unable to work action that the lawyer with co-counsel and considers repugnant or withdrawing would serve with which the lawyer has a the client’s interests; or fundamental disagreement. the lawyer’s mental or physical condition makes (7) The representation will it “difficult” to continue result in an unreasonable but is not severe enough financial burden on the to require mandatory lawyer. withdrawal). (8) There is other good cause for withdrawal. 4. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE SALE OF A LAW Pursuant to this rule: The California rule differs PRACTICE in various ways: The entire practice, or the entire field of practice, must “All or substantially all” of be sold to one or more the practice must be lawyers or firms. sold. A lawyer cannot sell just a field of their The seller must cease to law practice in California. engage in the private practice of law, or in the It specifically provides sold field of practice, in the that a client’s geographic area or confidential information jurisdiction where the must not be disclosed practice has been to a nonlawyer in conducted (but may work as connection with the sale. in-house counselor for a The seller generally must charitable organization). obtain each client’s Written notice must be written consent before given to the seller’s clients the client’s matter is regarding the sale, the transferred. However, if clients’ right to retain other reasonable efforts have counsel and to take been made to locate the possession of their files, and client and no response the fact that consent to the to the notice is received transfer of the clients’ files within 90 days, consent will be presumed if a client is presumed. takes no action within 90 The seller is not days of receipt of the notice. prohibited from Clients’ fees must not be practicing law following increased solely because of the sale. (However, the the sale. seller and purchaser may choose to include this as a term in the sale agreement.) WHEN CLIENT HAS A lawyer must abide by the client’s decisions as to the FINAL DECISION following: Whether to accept a settlement offer. What plea to enter. Whether to waive a jury trial in a criminal case. Whether the client will testify in a criminal case.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 5. ABA RULE CALIFORNIA DIFFERENCE ASSISTING CLIENT IN A lawyer must not counsel or The California rule also CRIMINAL OR assist the client in illegal or prohibits a lawyer from FRAUDULENT fraudulent conduct. The lawyer assisting a client in conduct CONDUCT may, however, advise the client that violates a court rule of the legal consequences of a or ruling. proposed course of action. If The commentary also the client insists on pursuing provides that if California an illegal or unethical course of law conflicts with federal or conduct, the lawyer must tribal law (for example, with withdraw. respect to marijuana laws), the lawyer must inform the client about the related federal or tribal law and policy. LIMITING SCOPE OF A lawyer may reasonably limit the scope of a representation REPRESENTATION with the client’s informed consent. ORGANIZATIONAL The lawyer represents and The California rule does CLIENTS owes a duty to the not authorize outside organization, not its reporting; the lawyer may constituents. The lawyer must only disclose the explain this to a constituent organization’s confidential whenever the organization’s information if an exception interests are adverse to those to the duty of of the constituent with whom confidentiality applies. the lawyer is dealing. However, the lawyer may withdraw if the highest If the lawyer learns that a authority has failed to act. person associated with the organization has acted, or is about to act, in a way that violates a duty to the organization or law in a way that might be imputed to the organization, the lawyer must proceed as reasonably necessary to protect the organization’s interests. This ordinarily involves reporting the matter to a higher authority in the organization. 6. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE ORGANIZATIONAL If the highest authority in the CLIENTS (CONTINUED) organization fails to act, the lawyer may report the information to appropriate persons outside of the organization to the extent that reporting is necessary to prevent substantial injury to the organization. This rule supersedes the duty of confidentiality. CLIENT WITH The ABA Rules provide that while representing a client with DIMINISHED CAPACITY diminished capacity (due to age, disability, etc.), a lawyer (ABA ONLY) generally must maintain a normal lawyer-client relationship. However, the lawyer may take protective action (for example, appointing a guardian) if they reasonably believe the client cannot protect themselves from substantial harm. In taking protective action, the lawyer has implied authority to reveal the client’s confidential information to the extent necessary to protect the client. California does not have a counterpart rule. COMPETENCE AND When representing a client, a The California Rules provide DILIGENCE lawyer must act competently; that a lawyer must not that is, with the legal intentionally, recklessly, knowledge and skill repeatedly, or with gross reasonably necessary for the negligence fail to perform representation. A lawyer may legal services with become competent through reasonable competence or preparation or by consulting diligence. Thus, a California with other lawyers. A lawyer lawyer generally is not may also act in an emergency subject to discipline under situation. the competence or diligence rules for a minor, A lawyer also must act with isolated act. reasonable diligence in representing a client (acting in The California standard for the client’s interests, competence additionally controlling workload, etc.). includes the mental, emotional, and physical ability reasonably necessary to perform the service.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 7. ABA RULE CALIFORNIA DIFFERENCE COMMUNICATION: A lawyer must: KEEPING THE CLIENT Explain the matter to the client to the extent necessary INFORMED to permit the client to make informed decisions. Keep the client reasonably informed about the status of the matter; this requires informing the client of all significant developments (see rule for plea bargain and settlement offers below). Comply with all reasonable requests for information from the client. COMMUNICATION: The California Rules provide that when a lawyer does not DISCLOSURE OF LACK have professional liability insurance, they must inform the OF LIABILITY client in writing at the time of engagement. If the lawyer INSURANCE ceases to have professional liability insurance during the (CALIFORNIA ONLY) representation, they must inform the client within 30 days. However, disclosure is not required when (1) the representation will not exceed four hours; (2) the lawyer is acting within their direct employment as a government lawyer or as in-house counsel; or (3) the lawyer is rendering legal services in an emergency. There is no ABA counterpart rule. COMMUNICATION: In accordance with the general In California, a lawyer must PLEA BARGAIN AND duty to communicate with the always promptly SETTLEMENT OFFERS client, the lawyer must notify communicate the following the client of any settlement to the client or any person offer or proffered plea bargain, with authority to accept the unless the client has offer, regardless of the previously indicated that the circumstances: proposal would be acceptable In a criminal case, all or unacceptable or has terms and conditions of authorized the lawyer to a proposed plea accept or reject the offer. bargain or other dispositive offer; and In all other matters, all amounts, terms, and conditions of any written offer of settlement made to the client (in a class action lawsuit, all named representatives of the class must be notified). 8. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE COMMUNICATION: In accordance with the PLEA BARGAIN AND general rule on SETTLEMENT OFFERS communications, an oral (CONTINUED) settlement offer in a civil case must be passed along to the client if it constitutes a significant development (which is usually the case unless the client has already indicated whether it would be acceptable). COMMUNICATION: A lawyer may delay the The California rule WITHHOLDING transmission of information to provides that a lawyer is INFORMATION FROM a client if the client would be allowed to delay disclosure CLIENT likely to react imprudently to to the client only if the an immediate communication. lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to the client or others. CONFIDENTIALITY AND PRIVILEGE DUTY OF Broader than attorney-client privilege. A lawyer must not CONFIDENTIALITY reveal any information relating to the representation of a client, regardless of the source of information, unless some exception applies. Applies to any type of disclosure, not just disclosure in court proceedings. Also applies to information of former clients and information gained during consultations with prospective clients. As part of this duty, a lawyer must take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the client’s confidential information. WHEN CONFIDENTIAL A lawyer generally may only disclose a client’s confidential INFORMATION MAY BE information if the client gives informed consent, or DISCLOSED disclosure is impliedly authorized to carry out the representation, or an exception to the duty applies. Where an exception applies, the lawyer may disclose a client’s confidential information only to the extent necessary to meet each exception. The individual exceptions are discussed below.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 9. ABA RULE CALIFORNIA DIFFERENCE DEATH OR BODILY A lawyer may disclose The California counterpart HARM EXCEPTION TO confidential information to exception is similar, but the DUTY OF prevent reasonably certain disclosure must be to CONFIDENTIALITY death or substantial bodily prevent a future criminal harm. act that is likely to result in death or substantial bodily harm. Before disclosure, the lawyer must (if reasonable under the circumstances) make a good faith effort to persuade the client not to commit or continue the criminal act (if it is the client who will be committing the crime) or to pursue a course of conduct that will prevent the crime. The lawyer must also inform the client of the lawyer’s ability or decision to reveal the information. Note that this is the only formal exception included in the Cal. RPC; however, the Cal. RPC recognize that other exceptions exist under California law. FINANCIAL LOSS A lawyer may disclose There is no California EXCEPTION TO DUTY confidential information to exception for financial loss. OF CONFIDENTIALITY prevent the client from (ABA ONLY) committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person, if the client is using/has used the lawyer’s services in furtherance of the crime or fraud. Disclosure is also allowed to rectify or mitigate the financial loss if the crime is already completed. 10. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE ATTORNEY’S DEFENSE A lawyer may disclose California courts have EXCEPTION TO DUTY confidential information to recognized this exception. OF CONFIDENTIALITY collect a legal fee or defend the lawyer from some charge or claim of wrongdoing (for example, legal malpractice). LEGAL ETHICS ADVICE A lawyer may disclose There is no California EXCEPTION TO DUTY confidential information to counterpart exception. OF CONFIDENTIALITY obtain confidential legal ethics (ABA ONLY) advice. ORGANIZATIONAL A lawyer may disclose There is no California CONFLICTS EXCEPTION confidential information to counterpart exception. TO DUTY OF detect or address conflicts of CONFIDENTIALITY (ABA interest resulting from an ONLY) organizational change (change of employment, merger, or purchase of a law practice). (Note that standard conflicts checks within a firm would usually be “impliedly authorized.”) COMPLIANCE A lawyer may disclose California courts have EXCEPTION TO DUTY confidential information to recognized the exception OF CONFIDENTIALITY comply with a court order or for complying with a court other law. Additionally, as order or law. Note, explained elsewhere in this however, that other ethics outline, another ethics rule rules generally do not may permit or require the supersede the duty of disclosure of confidential confidentiality in California. information (outside reporting of corporate violations; candor to the tribunal). ATTORNEY-CLIENT Allows a client to refuse to Under California law, the PRIVILEGE testify and prevent their attorney-client privilege attorney from testifying in terminates when the court about confidential client’s estate is settled communications between the and their personal two or their respective agents. representative is discharged. The attorney-client privilege is perpetual; it even survives the client’s death.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 11. ABA RULE CALIFORNIA DIFFERENCE EXCEPTIONS TO Client seeks the attorney’s California law provides an ATTORNEY-CLIENT services to enable or aid additional exception to the PRIVILEGE anyone to commit a future attorney-client privilege: crime or fraud. When disclosure is To a communication relevant necessary to prevent a to an issue of breach of the criminal act that the duties arising out of the lawyer reasonably lawyer-client relationship. believes is likely to result in a person’s substantial In civil litigation between bodily injury or death (as persons who were formerly discussed above, this is the joint clients of the attorney. also an exception to the ethical duty of In a variety of situations confidentiality). relating to the competency or intent of a client who has attempted to dispose of property by will or inter vivos transfer. DUTY OF LOYALTY AND CONFLICTS OF INTEREST—INTRODUCTION AND CONFLICTS WITH CURRENT CLIENTS IMPUTATION OF Generally, when one lawyer cannot take on a matter CONFLICTS because of a conflict of interest, the other lawyers in the firm are also barred from taking on that matter. The conflict is said to be “imputed” from the first lawyer to the other lawyers. The exceptions to imputed disqualification are as follows: When the conflict is personal to the disqualified lawyer and would not materially limit the representation of the client by the other lawyers in the firm. When the conflict is based on certain situations involving the disqualified lawyer’s prior representation, employment, etc. (discussed in further detail infra), and the lawyer is properly screened from the matter and the affected persons are given notice. Also note that an imputation can be waived by the affected client(s). 12. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE GENERAL TYPES OF A conflict with a current client exists in either of the CURRENT-CLIENT following situations: CONFLICTS (1) The representation of one client will be directly adverse to another client who the lawyer represents in the same or a separate matter. There is a direct adversity conflict even if the lawyer represents the other client in totally unrelated matters. Direct adversity also exists when a lawyer must conduct a harmful or embarrassing cross-examination of an existing client in the course of representing another client. (2) There is a significant risk that the representation of the client will be materially limited by the lawyer’s own interest or by the lawyer’s responsibilities to another client, a former client, or a third person. The “significant risk of material limitation” conflict is relevant in various situations, including: when a lawyer is representing multiple parties on the same side of a matter and the parties have potentially conflicting interests; when a lawyer is taking inconsistent legal positions in two cases and the first case is likely to create a controlling precedent in the second case; when the lawyer is dealing with a former client conflict that could affect their representation of the current client; or when the lawyer has a conflict based on their own financial or other personal interest. STEPS FOR RESOLVING If there is a conflict as The California rule is the A CURRENT-CLIENT described above, the lawyer same, except that it CONFLICT may still undertake the requires informed written representation if all four consent, meaning that conditions are satisfied: both the disclosure and the consent from the client (1) The lawyer reasonably must be in writing. (In believes that they can competently and diligently contrast, under the ABA represent the client despite Rules, the “informed consent, confirmed in the conflict. writing” requirement may (2) The representation is not be met if the client orally prohibited by law. consents and the lawyer promptly transmits a confirmatory memo to the client.)  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 13. ABA RULE CALIFORNIA DIFFERENCE STEPS FOR RESOLVING (3) The representation does Whenever “informed A CURRENT-CLIENT not involve asserting a consent, confirmed in CONFLICT claim by one client against writing” is mentioned in (CONTINUED) another client represented these materials, note that by that lawyer in the same the California counterpart proceeding before a requires the more strict tribunal (that is, the lawyer “informed written consent.” cannot be on both sides of the same litigation). (4) Each affected client gives informed consent, confirmed in writing. WRITTEN DISCLOSURE The California Rules provide that even when a “significant REQUIREMENT FOR risk” of material limitation is not present, the following LAWYER’S relationships always require written disclosure to the client: RELATIONSHIPS The lawyer (or another lawyer in their firm) has a legal, (CALIFORNIA ONLY) business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client’s matter. The lawyer (or another lawyer in their firm) is an immediate family member of, or lives with, or is in an intimate personal relationship with, or is a client of the firm of, another party’s attorney in the client’s matter. If there is a significant risk of material limitation because of the relationship, the usual informed written consent from the client is required. There is no ABA counterpart to these provisions. BUSINESS A lawyer must not enter into a business transaction with a TRANSACTIONS WITH/ client or knowingly acquire an ownership, possessory, PECUNIARY INTERESTS security, or money interest that is adverse to a client, unless ADVERSE TO CLIENT all of the following conditions are satisfied: The terms are fair to the client. The terms/lawyer’s role in the transaction are fully disclosed to the client in writing. The client is advised in writing that they should get independent advice from a lawyer before entering into the arrangement. The client gives informed consent, in a writing that the client signs. 14. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE BUSINESS Note that this rule does not apply to standard commercial TRANSACTIONS WITH/ transactions between the lawyer and client for products or PECUNIARY INTERESTS services that the client generally markets to others. ADVERSE TO CLIENT (CONTINUED) MISUSE OF CLIENT’S A lawyer must not use confidential information to a client’s CONFIDENTIAL disadvantage, unless the client gives informed consent or INFORMATION some exception to the duty of confidentiality applies. (This rule also prohibits using information against former and prospective clients, unless the information has become generally known.) SUBSTANTIAL GIFTS A lawyer must not: The California rule is the FROM CLIENTS Solicit a substantial gift from same with respect to a client (for the lawyer or the soliciting gifts, but is slightly more flexible lawyer’s relative); or regarding the preparation Prepare an instrument on of instruments. A lawyer behalf of the client giving a may prepare an instrument substantial gift to the lawyer that creates a substantial (or the lawyer’s relative). gift to the lawyer or However, these prohibitions lawyer’s relative, even do not apply if the client is where the client is not related to the recipient of the related to the recipient, if gift (that is, the lawyer or the the client has been lawyer’s relative). advised by an independent lawyer who has provided a certificate of independent review. FINANCIAL ASSISTANCE A lawyer must not provide The California rule applies TO CLIENT financial assistance in to financial assistance to a connection with pending or client in all contexts, not contemplated litigation, with just litigation. It adds the the following exceptions for following: court costs and litigation It permits the same expenses: activities as the ABA rule The lawyer may advance regarding advances to court costs and litigation clients and paying the expenses, and the expenses of indigent repayment may be clients—not just litigation contingent on the outcome expenses, but any of the case (for example, the expenses incurred in lawyer and client may agree promoting or protecting the client’s interests.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 15. ABA RULE CALIFORNIA DIFFERENCE FINANCIAL ASSISTANCE that the client only needs to It prohibits a lawyer from TO CLIENT pay the lawyer back if the “buying” a potential (CONTINUED) client wins). client with a promise to pay the potential If the client is indigent, the client’s debts. lawyer may pay the court costs and litigation It does not contain the expenses outright. ABA provision for pro bono representations. A lawyer representing an However, it provides that indigent client pro bono after the lawyer is hired, may provide modest gifts to they may lend their client the client for food, rent, transportation, medicine, money for any purpose if the client gives them a and other basic living written promise to expenses. However, the repay the loan. lawyer must not: (1) promise or imply the availability of It specifies that with the such gifts; (2) seek or accept client’s consent, the reimbursement from the lawyer may pay, or agree client or anyone affiliated to pay, the client’s with the client; or (3) expenses to a third publicize or advertise a party from funds willingness to provide such collected for the client as gifts to prospective clients. a result of the representation. AGGREGATE A lawyer must not participate in the making of an aggregate SETTLEMENT settlement agreement unless: (1) the lawyer discloses to AGREEMENTS each client the existence and nature of all the claims or pleas involved and the participation of each person in the settlement; and (2) each client gives informed consent to the agreement in a writing signed by the client. COMPENSATION FROM A lawyer must not accept The California rule requires SOMEONE OTHER THAN compensation for representing informed written consent CLIENT a client from a third party from the client. unless: It also provides that The client gives informed disclosure and consent are consent; not required at all if: (1) There is no interference with nondisclosure or the compensation is otherwise the lawyer’s independence of professional judgment or authorized by court order; the lawyer-client relationship; or (2) the lawyer is rendering legal services on and behalf of a public agency 16. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE COMPENSATION FROM Confidential information or nonprofit organization. SOMEONE OTHER THAN relating to the Additionally, in emergency CLIENT (CONTINUED) representation of the client situations the lawyer may remains protected. obtain the client’s consent after the fact. SETTLING EXISTING A lawyer must not settle a claim or potential claim for MALPRACTICE CLAIM malpractice liability with an unrepresented client or former client without (1) advising that person in writing that independent counsel is desirable, and (2) giving that person a reasonable chance to consult with independent counsel. PROSPECTIVELY A lawyer must not make an The California rule does LIMITING LIABILITY FOR agreement prospectively not permit prospectively MALPRACTICE limiting the lawyer’s liability to limiting liability for a client for malpractice unless malpractice in any the client is independently circumstance. represented in making the agreement. ACQUIRING LITERARY A lawyer must not acquire California did not adopt a OR MEDIA RIGHTS literary or media rights to a specific counterpart to this CONCERNING CLIENT’S story based in substantial part rule. A lawyer’s acquisition CASE on information relating to the of literary or media rights lawyer’s current representation based on the client’s case of a client. However, the is treated as a pecuniary lawyer may acquire such interest adverse to a client rights after the client’s legal and must meet the matter is entirely completed, requirements of that rule. appeals and all. PROPRIETARY A lawyer must not acquire a California did not adopt a INTEREST IN CAUSE OF proprietary interest in the specific counterpart to this ACTION cause of action or subject rule. A lawyer’s acquisition matter of litigation the lawyer of an ownership interest in is conducting for a client, the subject of the except that the lawyer may: (1) representation is treated acquire a lien authorized by as a pecuniary interest law to secure the lawyer’s fee adverse to a client and or expenses, and (2) contract must meet the with a client for a reasonable requirements of that rule. contingent fee in a civil case.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 17. ABA RULE CALIFORNIA DIFFERENCE PARTICIPATION IN In connection with a probate, foreclosure, receiver’s, FORECLOSURE OR SALE trustee’s, or judicial sale, the California Rules provide that a (CALIFORNIA ONLY) lawyer must not: Directly or indirectly purchase property in an action or proceeding in which such lawyer—or any other lawyer with whom the lawyer is personally or professionally affiliated—is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator. Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm, or an employee of the lawyer or the firm. However, this rule does not prohibit a lawyer from transactions authorized by and in compliance with the Probate Code. There is no ABA counterpart rule. SEXUAL RELATIONSHIP A lawyer must not have a The California rule is the WITH CLIENT sexual relationship with a client same, but includes an unless the sexual relationship additional exception for pre-dates the lawyer-client when the lawyer and client relationship. If the client is an get married or enter into a organization, the rule applies registered domestic to a sexual relationship with a partnership. constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters. Even if the relationship pre-dates the representation, the lawyer should consider whether the relationship will materially limit the representation and implicate the general conflict of interest rule for current clients. Note that unlike the other specific conflicts discussed, this type of conflict is not imputed to others at the lawyer’s firm. 18. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE DUTY OF LOYALTY AND CONFLICTS OF INTEREST—LAWYER’S FORMER WORK AND SPECIAL ROLES USING CONFIDENTIAL A lawyer must not reveal a former client’s confidential INFORMATION TO information or use such information to the former client’s FORMER CLIENT’S disadvantage without consent (unless it has become DISADVANTAGE generally known or an exception to the duty of confidentiality applies). OPPOSING FORMER A lawyer must not represent one client whose interests CLIENT IN SAME OR are materially adverse to those of a former client in a SUBSTANTIALLY matter that is the same or “substantially related” to a RELATED MATTER matter in which the lawyer represented the former client— unless the former client gives informed consent, confirmed in writing. Two matters are “substantially related” if (1) they involve the same transaction or legal dispute, or (2) there is a substantial risk that confidential factual information that would have normally been obtained in the prior representation would materially advance the client’s position in the subsequent matter. OPPOSING CLIENT OF If a lawyer’s former firm represented a client in a matter and FORMER FIRM IN SAME the lawyer had acquired material confidential information OR SUBSTANTIALLY about the matter while working at the firm, the lawyer must RELATED MATTER not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client, unless the former firm’s client gives informed consent, confirmed in writing. EFFECT OF INCOMING If a lawyer who moves to a In this situation, the LAWYER’S CONFLICT new firm is disqualified from California rule provides ON NEW FIRM representing a client because that screening and notice of a conflict with a former will only cure the client, the new firm may be imputation if the disqualified as well unless the disqualified lawyer did not lawyer is properly screened substantially participate (meaning, the disqualified in the same or substantially lawyer does not work on the related matter while at case, discuss it with those who their prior firm. do, or have access to case files) and does not share fees from the matter, and the former client is given notice to ensure compliance.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 19. ABA RULE CALIFORNIA DIFFERENCE FIRM OPPOSING CLIENT Lawyers often leave a firm and take their clients with them. OF DEPARTED LAWYER A lawyer’s former firm is generally not prohibited from representing a person with interests materially adverse to those of a client of the formerly associated lawyer that is not currently represented by the firm, unless: (1) the matter is the same or substantially related to that in which the formerly associated lawyer represented the client; and (2) remaining lawyer(s) in the firm have protected confidential information that is material to the matter. OPPOSING A lawyer who obtains The California rule is PROSPECTIVE CLIENT confidential information during generally the same but IN SAME OR a consultation with a provides that a conflict SUBSTANTIALLY prospective client must not exists if the lawyer RELATED MATTER later represent a client obtained information that is adverse to the prospective “material” to the current client in the same or matter; it does not need to substantially related matter if be “significantly harmful” to the information could be the prospective client. significantly harmful to the prospective client, unless both the client and prospective client provide informed consent, confirmed in writing. Imputation to others will be cured if the other lawyers at the firm: (1) demonstrate that the disqualified lawyer took care to avoid exposure to more confidential information than was necessary to determine whether to represent the prospective client; (2) demonstrate that the disqualified lawyer is timely screened and will not share in the fee; and (3) give written notice to the prospective client. 20. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE PRIVATE WORK A lawyer who leaves government service and enters private FOLLOWING practice must not represent a private client in a matter in GOVERNMENT WORK which the lawyer participated personally and substantially ON SAME MATTER while in government service, unless the government agency gives informed consent, confirmed in writing. As used in this rule, “matter” means a specific set of facts involving some specific parties. Imputation to others at the firm will be cured if the disqualified lawyer is screened and does not share in the fee, and the government agency is given written notice to ensure compliance. CONFLICT BASED ON A government lawyer who receives confidential INFORMATION GAINED government information about a person must not later DURING GOVERNMENT represent a private client whose interests are adverse to SERVICE that person, when the information could be used to the material disadvantage of that person. “Confidential government information” means information gained under government authority that the government is prohibited from revealing and that is not available to the public. Imputation to others at the firm will be cured if the disqualified lawyer is screened and does not share in the fee. GOVERNMENT WORK A current public employee must not participate in a matter FOLLOWING PRIVATE in which they participated personally and substantially WORK ON SAME while in private practice or nongovernmental employment, MATTER unless the appropriate government agency gives informed consent, confirmed in writing. PRIOR INVOLVEMENT IN A lawyer must not represent a The California rule MATTER AS JUDGE, private client in a matter in provides that if the LAW CLERK, OR THIRD- which the lawyer has earlier disqualified lawyer’s PARTY NEUTRAL participated personally and conflict is based on their substantially while serving as a prior service as a mediator judge or other adjudicative or settlement judge, the officer or as a law clerk to such imputation cannot be person, or as an arbitrator, cured. mediator, or other third-party neutral, unless all parties to the proceedings give informed consent, confirmed in writing.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 21. ABA RULE CALIFORNIA DIFFERENCE PRIOR INVOLVEMENT IN Imputation to others at the firm MATTER AS JUDGE, will be cured if the disqualified LAW CLERK, OR THIRD- lawyer is screened and does PARTY NEUTRAL not share in the fee, and (CONTINUED) written notice is given to the parties and the appropriate tribunal. GOVERNMENT A lawyer who is a government employee or acting as a EMPLOYEE OR THIRD- third-party neutral must not negotiate for private PARTY NEUTRAL employment with any party or lawyer in a matter in which NEGOTIATING FOR the lawyer is participating personally and substantially PRIVATE EMPLOYMENT (there is an exception for law clerks as long as the judge is notified). CONFLICT WHEN Under the ABA Rules, a lawyer may evaluate a client’s LAWYER ACTS AS affairs for the use of a third person if the lawyer reasonably EVALUATOR (ABA ONLY) believes that making the evaluation is compatible with the lawyer’s other responsibilities to the client. However, if the lawyer knows or should know that the evaluation will materially harm the client, the lawyer must obtain the client’s informed consent before making the evaluation. There is no California counterpart to this rule. MEMBERSHIP IN LEGAL A lawyer may serve as a director, officer, or member of a SERVICES legal services organization (apart from the lawyer’s regular ORGANIZATIONS employment) even though the organization serves persons whose interests are adverse to the lawyer’s regular clients. However, the lawyer must not knowingly participate in a decision or action of the organization if: Doing so would be incompatible with the lawyer’s obligations to a client under the general conflict of interest rules; or Doing so would adversely affect the representation of one of the organization’s clients whose interests are adverse to those of a client of the lawyer. LAW REFORM The ABA Rules provide that when a lawyer is working on a ACTIVITIES AFFECTING law reform project and is asked to participate in a decision CLIENT INTERESTS (ABA that could materially benefit one of the lawyer’s clients, the ONLY) lawyer must disclose that fact (but need not identify the client). California does not have a counterpart rule. 22. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE QUICK-ADVICE A lawyer may participate in a quick-advice program PROGRAMS sponsored by a court or nonprofit organization. The RPC generally apply to the lawyer-client relationship, but the conflicts of interest rules are relaxed. Because a lawyer in this situation has no time to run a standard conflicts check, the conflicts rules relating to current and former clients do not apply unless the lawyer actually knows that giving the quick advice creates a conflict of interest. FEES AND PROPERTY FEE AMOUNT A lawyer must not make an The California rule instead agreement for, charge, or prohibits illegal or collect an unreasonable fee or unconscionable fees. As an unreasonable amount for under the ABA rule, various expenses. Various factors are factors are considered in considered in determining determining whether a fee whether a fee is reasonable is unconscionable. (time and labor; difficulty of the work; customary fee within the locality; reputation of the attorney; etc.). COMMUNICATION OF A lawyer generally must, Under California law, if it is FEE AGREEMENT before or within a reasonably reasonably foreseeable time after beginning the that the total expense to representation, communicate the client (including legal the basis or rate of the fee fees) will exceed $1,000, and the expenses for which the fee agreement must the client will be responsible. be in writing to be However, this communication enforceable. is not required if the lawyer However, even if the bill regularly represents the client will exceed $1,000, a and will be charging the same writing is not required in basis or rate as in the other the following situations: matters. The client is a As a general rule, fee corporation. agreements need NOT be in The client states in writing (except for contingent writing that they do not fee agreements), although a want a fee agreement. writing is preferable. The legal services are the same kind that the client has previously received and paid for.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 23. ABA RULE CALIFORNIA DIFFERENCE COMMUNICATION OF The lawyer acted in an FEE AGREEMENT emergency to protect (CONTINUED) the client’s rights. A writing is otherwise impractical. ADVANCE PAYMENTS A lawyer may require an The California rule is AND REFUNDABILITY advance payment (including a generally the same, but it flat fee), but the lawyer must also specifically prohibits a refund the unearned portion lawyer from denominating of the fee if the client fires the any fee as “nonrefundable,” lawyer or the lawyer does not “earned on receipt,” etc., perform the services. unless: (1) the fee is a true retainer, and (2) the client However, the lawyer is not agrees in writing after required to refund a true disclosure that they will not retainer fee (that is, a fee that be entitled to any refund. is paid solely to ensure the lawyer’s availability). PROPERTY FOR A lawyer may accept property A California lawyer may SERVICES in return for services (for accept property for example, an ownership services. As discussed in interest in a business), the Conflicts of Interest provided that this does not section, California does not involve a proprietary interest have a counterpart rule in the cause of action or prohibiting a lawyer from subject of litigation (which isholding a proprietary prohibited by the conflict of interest in the cause of interest rules). Such an action or subject of arrangement is also subject to litigation. However, a scrutiny as a conflict of interest lawyer’s acceptance of because it may constitute a property as payment for business transaction/adverse legal services should still pecuniary interest between be analyzed under the the lawyer and the client. conflict rule for business transactions and other pecuniary interests adverse to a client. CONTINGENT FEES: A contingent fee must be Additionally, California AMOUNT reasonable, and a lawyer must imposes specific caps on not use a contingent fee when contingent fees in medical the facts make it unreasonable malpractice cases. The to do so. exact limits are beyond the scope of the bar exam. 24. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE CONTINGENT FEES: The contingent fee agreement The California rule is to the WRITING AND must be in writing and signed same effect, but requires DISCLOSURE by the client, and must disclose: two additional items in the REQUIREMENTS disclosure: How the fee will be calculated. The agreement must state that the lawyer’s What expenses will be percentage is not set by deducted from the recovery. law and can be Whether expenses will be negotiated between the deducted before or after the lawyer and client. contingent fee is calculated. The agreement must What expenses the client state how the client will must pay regardless of the be charged for work not outcome. covered by the At the end of the matter, the contingency. lawyer must also give the client a written statement showing the outcome, the remittance to the client, and how the remittance was calculated. DISCHARGE OF A client can discharge a lawyer hired on a contingency LAWYER ON basis at any time. Usually, the discharged lawyer can CONTINGENCY recover in quantum meruit for the reasonable value of their services performed up to the time of the discharge. However, the lawyer’s claim does not arise until the contingency comes to pass (for example, the case is settled). And note that if the lawyer was discharged for egregious ethical misconduct, the court may find that the lawyer forfeited their fee. CONTINGENT FEES: Defending a client in a criminal case. WHEN PROHIBITED Domestic relations cases where the fee is contingent on the securing of a divorce, alimony award, etc. (but permitted in connection with the recovery of post-judgment balances due under an existing order).  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 25. ABA RULE CALIFORNIA DIFFERENCE SEPARATION OF All money that a lawyer The California separation LAWYER’S AND receives in connection with a of funds rule is basically CLIENT’S FUNDS representation (whether from the same, but applies to all the client or a third party) must funds received or held by a promptly be placed in a client lawyer for the benefit of a trust account, separate from client, or for the benefit of the lawyer’s own personal and a third person to whom the business accounts. The lawyer lawyer owes a legal duty. must never place their own The trust account must be money or their firm’s money maintained in California, or, into the client trust account, with the client’s written except for the sole purpose of consent, in a different paying bank service charges. jurisdiction with which the client has a substantial relationship. PLACEMENT OF An advance payment from a The California rule on ADVANCE PAYMENTS client must be put into the advance payments is client trust account, to be generally the same. withdrawn by the lawyer only However, a flat fee may be as fees are earned or deposited into the firm’s expenses incurred. This is operating account, because a lawyer must refund provided that the lawyer to the client any unearned, discloses to the client in prepaid legal fees at the close writing that the client: (1) of the representation. has a right to require that the flat fee be placed in the client trust account instead; and (2) is entitled to a refund of any unearned amount. Additionally, if the flat fee exceeds $1,000, the agreement and the disclosures above must be set forth in a writing signed by the client. 26. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE SAFEKEEPING AND Upon receiving funds or The California rule on DELIVERY OF property in which a client or receiving funds or property PROPERTY third party has an interest, is generally the same. must promptly notify the However, a lawyer must, client or third party. absent good cause, notify the client or third person Must promptly deliver funds or property to which the client within 14 days of receipt of the funds. or third person is entitled. Must identify and label securities and properties and put them in a place of safekeeping as soon as practicable. Must keep records of client account funds and other property for at least five years after final distribution of the property. DISPUTED FUNDS AND If a lawyer possesses property The California rule on PROPERTY in which at least two persons receiving funds or property claim interests, the lawyer is generally the same. must keep the disputed However, once funds are portion separate until no longer in dispute, there resolution of the dispute. is a rebuttable presumption However, the lawyer must that a lawyer is in violation promptly distribute the if, absent good cause, the undisputed portion. lawyer fails to distribute the funds within 45 days of the date the funds became undisputed. SPLITTING LEGAL FEES A lawyer may share legal fees The California rule permits WITH OUTSIDE with a lawyer at a different firm “true” referral fees in that it LAWYERS if: does not require that the The total fee is reasonable; split be proportionate to the services or that each lawyer Either: assume joint responsibility The split is in proportion for the matter. Instead, it to the services performed requires the following: by each lawyer, or The agreement between the lawyers to divide the fees must be in writing;  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 27. ABA RULE CALIFORNIA DIFFERENCE SPLITTING LEGAL FEES The split is in some other The total fee must not be WITH OUTSIDE proportion if each lawyer increased solely by LAWYERS assumes joint reason of the agreement (CONTINUED) responsibility for the to divide fees (more matter; and specific than ABA); and The client agrees to the split The client must provide in a writing that discloses written consent to the the share each lawyer will division and its terms receive. (same as ABA). SPLITTING LEGAL FEES A lawyer or law firm must not The California rule adds WITH NONLAWYERS share legal fees with a two more exceptions: nonlawyer, subject to the Sharing legal fees that following limited exceptions: were not court-awarded Paying a death benefit to a with a nonprofit dead lawyer’s estate or organization that other designated persons. employed or recommended the Purchasing a law practice of lawyer in the matter, if: (1) a dead, disabled, or the organization is disappeared lawyer and exempt from federal paying the purchase price to income tax; (2) the the estate or nonlawyer lawyer enters into a representatives. written agreement with Including nonlawyer the organization to employees in a divide the fee; (3) the compensation or retirement lawyer provides written plan, even if the plan is disclosure to the client of funded by legal fees. the proposed fee Sharing court-awarded legal division and its terms fees with a nonprofit and obtains written organization that employed consent from the client; or recommended the lawyer and (4) the total fee in the matter. charged by the lawyer is not increased solely by reason of the agreement to divide fees with the organization. 28. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE SPLITTING LEGAL FEES Paying a prescribed WITH NONLAWYERS registration, referral, or (CONTINUED) other fee to a lawyer referral service established, sponsored, and operated in accordance with the State Bar of California’s Minimum Standards for Lawyer Referral Services. DUTIES TO COURTS CANDOR TO THE A lawyer must not knowingly The California rule is the TRIBUNAL: APPLICABLE make a false statement of law same, but also specifically LAW to the court, or fail to correct a prohibits “knowingly previous false statement. misquoting” to a tribunal Additionally, a lawyer must not the language of a book, statute, decision, or other knowingly fail to disclose to the court legal authority in the authority. controlling jurisdiction that is directly adverse to the client’s position and that has not been disclosed by opposing counsel. CANDOR TO THE A lawyer must not knowingly make a false statement of TRIBUNAL: FACTS OF fact to the court, or fail to correct a previously made false CASE statement of material fact. As a general rule, a lawyer is under no obligation to volunteer a fact that is harmful to their client’s case. However, in an ex parte proceeding, the lawyer must inform the tribunal of all material facts known to the lawyer that will help the tribunal make an informed decision. CANDOR TO THE A lawyer must refuse to offer The California rule TRIBUNAL: FALSE evidence that the lawyer provides that reasonable EVIDENCE knows is false (but see below remedial measures must for false testimony by a not involve revealing criminal defendant client). A information that is lawyer may refuse to offer protected under the duty evidence that they reasonably of confidentiality. believe is false, except for a criminal defendant’s testimony on their own behalf.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 29. ABA RULE CALIFORNIA DIFFERENCE CANDOR TO THE If a lawyer has offered a piece Put another way, the ABA TRIBUNAL: FALSE of evidence and later rule provides that the duty EVIDENCE discovers that it is false, they of candor to the tribunal (CONTINUED) must take reasonable supersedes the duty of remedial measures: (1) urge confidentiality, and the the client to cooperate in California rule takes the withdrawing or correcting it; (2) opposite view. if unsuccessful, seek to withdraw if necessary, and/or take other measures to strike the evidence; (3) if all else fails, disclose the situation to the judge, even if that means disclosing information that would be protected by the duty of confidentiality. CANDOR TO THE If the client is a criminal The California rule takes a TRIBUNAL: FALSE defendant and the lawyer different approach for false TESTIMONY BY knows that the client intends testimony by a criminal CRIMINAL DEFENDANT to testify falsely (or has already defendant client. The CLIENT done so), the lawyer must take lawyer may offer the the “remedial measures” defendant’s testimony in a above: try to persuade the narrative form if the client not to testify falsely or lawyer (1) has made recant the false testimony; reasonable efforts to consider withdrawal; and if all dissuade the client from else fails, reveal the situation testifying falsely and (2) to the judge. has unsuccessfully sought permission to withdraw. CANDOR TO THE The duty to correct false statements and rectify false TRIBUNAL: DURATION evidence continues until the end of the proceedings: when OF OBLIGATION a final judgment has been affirmed on appeal or the time for appeal has expired. Note, however, that prosecutors have additional duties that extend beyond the end of the proceeding (discussed infra). FRIVOLOUS CLAIMS A lawyer who is serving as an advocate in a legal AND DEFENSES proceeding must not take a position that is either factually or legally frivolous (no good-faith argument). Despite this general rule, the lawyer for the defendant in a criminal case (or in any proceeding that could result in incarceration or confinement) may conduct the defense so that the prosecutor must prove every necessary element of the case. 30. PROFESSIONAL RESPONSIBILITY COMPARISON CHART ABA RULE CALIFORNIA DIFFERENCE EXPEDITING LITIGATION A lawyer must make The California rule does reasonable efforts to expedite not require a lawyer to litigation consistent with the “expedite” litigation, but interests of the client. instead prohibits a lawyer from using means that have no substantial purpose other than to delay or prolong the proceeding or to cause needless expense. IMPROPER INFLUENCE A lawyer must not seek to The California rule more OF TRIBUNAL influence a judge, court specifically prohibits a official, juror, or prospective lawyer from directly or juror by improper means. indirectly giving or lending anything of value to a judge, official, or employee of a tribunal except as permitted by statute, an applicable code of judicial conduct, or standards governing employees of the tribunal. This rule does not prohibit a lawyer from contributing to a judge’s campaign fund. EX PARTE CONTACT During a pending proceeding, a lawyer must not have an ex WITH JUDGES AND parte communication with a judge or court official except COURT OFFICIALS when authorized by law or court order. EX PARTE CONTACT A lawyer must not have any ex The California rule more WITH JURORS AND parte communication with a specifically provides that: PROSPECTIVE JURORS prospective juror or juror During jury selection and DURING PROCEEDING except when authorized by law trial, a lawyer connected or court order. with a case must not communicate directly or indirectly with a prospective juror or juror about any subject; and During trial, a lawyer not connected with a case must not communicate directly or indirectly with a known juror about the case.  PROFESSIONAL RESPONSIBILITY COMPARISON CHART 31. ABA RULE CALIFORNIA DIFFERENCE POST-DISCHARGE A lawyer may generally interview discharged jurors or CONTACT WITH prospective jurors, unless: (1) the communication is JURORS AND prohibited by law; (2) the juror has made known a desire PROSPECTIVE JURORS not to communicate; or (3) the communication involves misrepresentation, coercion, duress, or harassment. ADDITIONAL The California Rules also include the following provisions: CALIFORNIA RULES FOR A lawyer is prohibited from conducting an investigation CONTACT WITH of prospective jurors and jurors in a manner likely to JURORS AND influence the state of mind of the person in connection PROSPECTIVE JURORS with present or future jury service. All restrictions on contact with and investigations of prospective jurors and jurors also apply to the family members of such persons. A lawyer must promptly reveal to the court improper