Professional Responsibility PDF

11 PROFESSIONAL RESPONSIBILITY Professional Responsibility NOTE: The rules under the ABA Model Rules of Professional Responsibility (ABA) and the California Rules of Professional Conduct (CA) are the same unless otherwise indicated. A. Form...

11 PROFESSIONAL RESPONSIBILITY Professional Responsibility NOTE: The rules under the ABA Model Rules of Professional Responsibility (ABA) and the California Rules of Professional Conduct (CA) are the same unless otherwise indicated. A. Formation & Scope of Lawyer-Client Relationship  Formation of Lawyer-Client Relationship A lawyer-client relationship is formed when: (1) a person Feb 2021, Essay 4 Feb 2020, Essay 2 seeks legal services from a lawyer; AND (2) the lawyer July 2016, Essay 6 either (a) manifests consent to provide services, OR (b) July 2014, Essay 3 6 of 43 exams fails to manifest lack of consent to do so and knows or July 2013, Essay 1 should know that the person would reasonably rely on the July 2005, Essay 6 lawyer to provide legal services. In CA, the reasonable perception of a purported client may determine that such person deemed is a client of the lawyer.  Proper Scope of Lawyer-Client Relationship Generally, a client controls the objectives of the July 2022, Essay 3 Oct 2020, Essay 1 representation, and makes substantive decisions (including July 2014, Essay 3 whether to accept settlement offers or plead guilty, testify, July 2006, Essay 5 6 of 43 exams or waive a jury trial in criminal matters). The lawyer July 2005, Essay 6 controls the means (tactical decisions) to accomplish those July 2002, Essay 3 objectives, BUT must consult with the client as to means by which the objectives are pursued. A lawyer may limit the scope of the representation if: (1) it’s reasonable under the circumstances; AND (2) the client gives informed consent.  Advising or Assisting the Violation of Law A lawyer CANNOT counsel a client to engage (or assist a Feb 2019, Essay 5 client) in conduct that the lawyer knows is: (a) criminal; (b) fraudulent; OR (c) a violation of any law, rule, or ruling of 1 of 43 exams a tribunal [CA only]. Notwithstanding the above, a lawyer may: (1) discuss the legal consequences of any proposed course of conduct with a client; and (2) counsel/assist a client to make a good faith effort to determine the validity, scope, meaning, application of a law, [or application of a rule or ruling of a tribunal – CA © 2023 SmartBarPrep | www.smartbarprep.com 155 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY only]. Additionally, in CA, a lawyer is permitted to advise and assist a client with complying with California laws even if such laws conflict with Federal or tribal law. B. Duty of Competence, Communication, & Diligence  Duty of Competence A lawyer owes his client the duty of competence, which July 2022, Essay 3 July 2021, Essay 2 requires the lawyer to possess the legal knowledge, skills, Feb 2021, Essay 4 preparation, and thoroughness necessary to effectively July 2019, Essay 4 24 of 43 exams represent the client. July 2018, Essay 3 Feb 2018, Essay 1 o Under this duty, a lawyer CANNOT take a case in an Feb 2017, Essay 5 unfamiliar area of law unless he gains competence by: July 2016, Essay 6 (a) associating with another lawyer reasonably Feb 2016, Essay 3 believed to be competent; OR (b) acquiring sufficient July 2015, Essay 5 July 2014, Essay 3 learning and skill before performance is required. July 2013, Essay 1 In an emergency, a lawyer MAY give advice or assistance Feb 2013, Essay 2 (even if the lawyer does not have the skill ordinarily July 2011, Essay 4 Feb 2011, Essay 5 required) where referral/consultation/association with July 2010, Essay 2 another lawyer would be impractical. July 2009, Essay 1 Incompetence exposes a lawyer to: (1) discipline by the bar; July 2008, Essay 1 July 2005, Essay 3 (2) disqualification of the lawyer from a litigation matter; July 2005, Essay 6 AND/OR (3) a civil malpractice lawsuit. Feb 2004, Essay 3 In CA, a lawyer is only subject to discipline if he July 2003, Essay 5 July 2002, Essay 3 intentionally, recklessly, acts with gross negligence, or Feb 2002, Essay 4 repeatedly fails to perform legal services with competence. In CA, a lawyer HAS A DUTY TO keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology. Under the ABA, a lawyer SHOULD keep abreast of changes in the law and its practice to maintain their requisite knowledge and skill. © 2023 SmartBarPrep | www.smartbarprep.com 156 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Duty of Communication A lawyer must keep the client reasonably informed about July 2022, Essay 3 Feb 2022, Essay 4 any significant developments relating to the Feb 2017, Essay 5 representation. July 2013, Essay 1 9 of 43 exams The duty to communicate includes: (1) promptly informing Feb 2013, Essay 2 July 2010, Essay 2 the client of any situation where the client’s informed July 2006, Essay 5 consent is required; (2) keeping the client reasonably July 2005, Essay 3 informed on the status of the matter; (3) promptly July 2002, Essay 3 complying with requests for information (i.e. phone calls, inquiries); (4) consulting with the client about strategy decisions and any matters requiring the client’s consent; and (5) advising the client when the lawyer knows that the client expects assistance not permitted by ethical rules. All settlement offers MUST be conveyed to the client.  Duty of Diligence A lawyer shall act with reasonable diligence and July 2022, Essay 3 Feb 2022, Essay 4 promptness in representing a client. Unless the July 2021, Essay 2 representation is properly terminated, the lawyer must Feb 2021, Essay 4 10 of 43 exams pursue the case or matter to the end. July 2014, Essay 3 Feb 2013, Essay 2 In CA, a lawyer CANNOT intentionally, repeatedly, July 2011, Essay 4 recklessly, or with gross negligence fail to act with July 2005, Essay 3 reasonable diligence in representing the client. Feb 2005, Essay 4 July 2002, Essay 3 © 2023 SmartBarPrep | www.smartbarprep.com 157 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY C. Duty of Confidentiality  Duty of Confidentiality A lawyer has a duty to maintain the confidentiality of all Feb 2022, Essay 4 July 2021, Essay 2 information relating to the representation of a client. This Feb 2020, Essay 2 duty is broader than the attorney-client privilege, and July 2019, Essay 4 21 of 43 exams extends to all information conveyed between the lawyer and July 2017, Essay 2 July 2016, Essay 6 client/potential client, regardless of whether the client July 2014, Essay 3 requested that the information be kept confidential or July 2013, Essay 1 whether the use of the information will damage the client. Feb 2012, Essay 2 Under the ABA, a lawyer may disclose confidential July 2011, Essay 4 July 2010, Essay 2 information if: (a) the client consents; (b) the lawyer is Feb 2010, Essay 2 ordered by law to do so (e.g. a court order); (c) it’s needed July 2009, Essay 5 to defend a malpractice action or in a suit to recover legal Feb 2009, Essay 1 Feb 2008, Essay 2 fees; (d) to prevent death or substantial bodily harm; (e) to July 2006, Essay 5 prevent the client from committing a crime or fraud (in Feb 2004, Essay 3 which the lawyer’s services were used) that will result in July 2003, Essay 1 July 2003, Essay 5 substantial financial loss; OR (f) to secure legal advice Feb 2003, Essay 4 about the lawyer’s compliance with ethical rules. July 2002, Essay 3 In CA, a lawyer MAY (but is not required) to disclose confidential information of a client when: o (a) The client consents. o (b) The lawyer reasonably believes disclosure is necessary to prevent a crime that will likely result in death or substantial bodily injury to a person. Additionally, the lawyer must also satisfy two requirements before the disclosure takes place – the lawyer must: (1) first make a good faith attempt to counsel the client out of committing the crime and/or changing their course of action; and (2) inform the client of the lawyer’s ability or decision to disclose the information. This is the only listed exception to the Duty of Confidentiality under the CA Rules of Professional Conduct, but there are other exceptions recognized under CA law. o (c) It’s needed to defend a malpractice action or in a suit to recover legal fees, OR o (d) The lawyer is compelled by law or court order. If the client is an organization, and the lawyer becomes aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization, the lawyer © 2023 SmartBarPrep | www.smartbarprep.com 158 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY MAY refer the matter to higher authorities within the organization. After reporting up, the ABA permits disclosure to an outside source if it’s necessary to prevent substantial injury to the organization. However, CA generally DOES NOT allow reporting to an outside source – a lawyer only has the right to withdraw from the representation. The only exception when outside reporting is allowed is when it’s necessary to prevent death or substantial bodily harm to a person.  Inadvertent Disclosure of Confidential Information A lawyer shall make reasonable efforts to prevent the July 2021, Essay 2 Feb 2005, Essay 4 inadvertent or unauthorized disclosure of confidential information (including electronically stored information 2 of 43 exams [ESI]) relating to the representation of a client. Under the ABA, a lawyer who inadvertently receives a document or ESI must promptly notify the sender. This duty applies only when the lawyer knows/should know that the material was inadvertently sent. In CA, when a lawyer inadvertently/accidentally receives material that obviously appears to be confidential and privileged, the receiving lawyer must do three things: (1) refrain from examining the materials any more than is essential to ascertain whether the materials are privileged; (2) immediately notify the sender; AND (3) proceed to resolve the situation by agreement or through the court. A lawyer is NOT required to return the document/materials under the ABA or CA law. D. Duty to Safeguard Property  Duty to Safeguard Property A lawyer MUST hold the property of a client or third-person July 2022, Essay 3 July 2021, Essay 2 that is in the lawyer’s possession separate from the lawyer’s July 2017, Essay 2 own property. Feb 2017, Essay 5 4 of 43 exams All client funds (including advances of fees, costs, and expenses) MUST be kept in a separate attorney trust account. Client funds shall be withdrawn only as fees are earned or expenses incurred. Funds belonging to the lawyer © 2023 SmartBarPrep | www.smartbarprep.com 159 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY CANNOT be deposited into the trust account EXCEPT: (a) funds reasonably sufficient to pay bank charges; OR (b) funds belonging in part to both the client and lawyer, which must be withdrawn at the earliest reasonable time [CA only]. Unless the client consents to another place, the trust account must be located in the state of the lawyer’s office [under the ABA] or in the State of California [under CA rules]. Other property shall be identified as such and appropriately safeguarded. Additionally, a lawyer MUST return all client property (including all documents related to the representation) to client upon the client’s request or at the end of the representation. In CA, a lawyer CANNOT withhold a client’s case file for the purpose of getting paid. © 2023 SmartBarPrep | www.smartbarprep.com 160 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY E. Duty of Loyalty & Conflict of Interest  Conflict of Interest: Duty of Loyalty A lawyer owes his client the fiduciary duty of loyalty, July 2022, Essay 3 Feb 2022, Essay 4 which means that he must act in the client’s best interest July 2021, Essay 2 and avoid conflicts. This duty requires that the lawyer not Feb 2021, Essay 4 31 of 43 exams represent a client when a conflict of interest exists. Oct 2020, Essay 1 Feb 2020, Essay 2 Additionally, a lawyer CANNOT engage in self-dealing OR July 2019, Essay 4 act in his own interest rather than the client’s best interest. July 2018, Essay 3 Feb 2018, Essay 1 Feb 2017, Essay 5 July 2016, Essay 6 Feb 2016, Essay 3 July 2015, Essay 5 July 2014, Essay 3 July 2011, Essay 4 Feb 2011, Essay 5 July 2010, Essay 2 Feb 2010, Essay 2 Feb 2009, Essay 1 July 2008, Essay 1 Feb 2008, Essay 2 Feb 2007, Essay 2 July 2006, Essay 5 July 2005, Essay 3 July 2004, Essay 5 Feb 2004, Essay 3 July 2003, Essay 1 July 2003, Essay 5 Feb 2003, Essay 4 July 2002, Essay 3 Feb 2002, Essay 4 © 2023 SmartBarPrep | www.smartbarprep.com 161 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Conflict of Interest: Current Clients A lawyer owes his clients the fiduciary duty of loyalty, July 2021, Essay 2 Oct 2020, Essay 1 which requires that the lawyer not represent a client when a Feb 2020, Essay 2 conflict of interest exists. July 2018, Essay 3 20 of 43 exams A concurrent conflict of interest exists if: (a) the July 2016, Essay 6 July 2015, Essay 5 representation is directly adverse to another client; OR (b) July 2011, Essay 4 there is a significant risk that the lawyer’s representation Feb 2011, Essay 5 will be materially limited due to his (i) personal interests or July 2010, Essay 2 (ii) responsibilities to another present/former client or third- July 2008, Essay 1 Feb 2008, Essay 2 person. Feb 2007, Essay 2 However, a lawyer MAY represent a client whose interests July 2006, Essay 5 conflict if: (1) he reasonably believes that he will be able to July 2005, Essay 3 July 2004, Essay 5 provide competent and diligent representation to the client; Feb 2004, Essay 3 (2) the representation is not prohibited by law; (3) he’s not July 2003, Essay 5 representing parties on opposite sides of the same Feb 2003, Essay 4 July 2002, Essay 3 litigation; AND (4) each client affected by the conflict gives Feb 2002, Essay 4 informed consent (CA = informed written consent; ABA = informed consent, confirmed in writing). Dual Representation – Criminal Cases: A lawyer should normally DECLINE to represent multiple defendants in a criminal case because the potential for a conflict of interest is so grave. In CA, a lawyer must provide written disclosure (even if there is no significant risk that the representation will be limited) when the lawyer: (a) has (or knows that another lawyer in the firm has) a legal, business, financial, professional, or personal relationship to a party or witness in the same matter; OR (b) knows or reasonably should know that another party’s lawyer is a family member (spouse, parent, child, sibling), lives with, or is a client of the lawyer (or another lawyer in the firm) or has an intimate personal relationship with the lawyer. © 2023 SmartBarPrep | www.smartbarprep.com 162 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Conflict of Interest: Former Clients A lawyer owes his clients the fiduciary duty of loyalty, July 2019, Essay 4 July 2016, Essay 6 which requires that the lawyer not represent a client when a July 2011, Essay 4 conflict of interest exists. Feb 2011, Essay 5 7 of 43 exams Former Clients of the Lawyer: Unless a former client gives July 2010, Essay 2 Feb 2009, Essay 1 informed consent, a lawyer CANNOT thereafter represent Feb 2004, Essay 3 another person in the same or a substantially related matter when the person’s interests are materially adverse to the interests of the former client. Former Clients of the Lawyer’s Firm: Unless a former client gives informed consent, a lawyer CANNOT knowingly represent a person in the same or a substantially related matter that the lawyer’s firm had previously represented a client: (1) whose interests are materially adverse to that person; AND (2) about whom the lawyer had acquired confidential information that is material to the matter. Additionally, a lawyer CANNOT use or reveal confidential information to the detriment of a former client. Informed consent means: Informed written consent (CA) vs. Informed consent, confirmed in writing (ABA).  Conflict of Interest: Prospective Clients A lawyer CANNOT disclose confidential information 0 exams received from a prospective client. A lawyer CANNOT represent a client with materially 0 of 43 exams adverse interests to a prospective client in the same or a substantially related matter if the lawyer received confidential information material to the matter from the prospective client. Two exceptions exist to the above: o Exception #1: If both the affected client and prospective client give informed consent (CA = informed written consent; ABA = informed consent, confirmed in writing). o Exception #2: When the lawyer with whom the prospective client consulted is timely screened from participation in the matter AND written notice is promptly given to the prospective client. © 2023 SmartBarPrep | www.smartbarprep.com 163 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY In CA, a prospective client is someone who consults the lawyer for the purpose of hiring the lawyer OR securing legal services/advice. Under the ABA, a prospective client is someone who consults with a lawyer about the possibility of forming a client-lawyer relationship with respect to a matter. o Excluded are those who communicate information: (a) unilaterally without a reasonable expectation that the lawyer is willing to be retained; (b) after the lawyer has stated an unwillingness or inability to consult [CA only]; (c) without a good faith intention to seek legal advice or representation [CA only]; (d) in response to advertising that merely describes the lawyer’s education, experience, areas of practice, and contact information, or provides legal information of general interest [ABA only]; OR (e) for the purpose of disqualifying the lawyer [ABA only].  Conflict of Interest: Imputed Conflicts Generally, a conflict of interest is imputed to the entire law July 2019, Essay 4 Feb 2010, Essay 2 firm, and the entire firm is disqualified from the Feb 2003, Essay 4 representation. 3 of 43 exams However, the law firm will NOT be disqualified if: (a) the conflict is purely personal and does not materially limit the representation; OR (b) the lawyer is properly screened when: (i) the conflict arises out of association with the lawyer’s previous firm, (ii) the lawyer is timely screened and doesn’t receive a portion of the fee, (iii) written notice is given to the former client; and (iv) [CA only] the lawyer did not substantially participate in the matter at the prior firm.  Conflict of Interest: Former Lawyer for Government Former government lawyers (including prosecutors) who July 2004, Essay 5 Feb 2003, Essay 4 worked personally and substantially on a matter CANNOT work on that same matter at a private firm UNLESS the 2 of 43 exams government agency consents in writing. The conflict will NOT be imputed to the rest of the firm if: (1) the lawyer is timely screened and doesn’t receive a © 2023 SmartBarPrep | www.smartbarprep.com 164 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY portion of the fee; AND (2) prompt written notice is given to the government agency.  Business Ownership by a Lawyer A lawyer may own and operate a business separate from the Feb 2006, Essay 5 practice of law. However, the lawyer must be careful to not engage in a business that would pose a conflict of interest 1 of 43 exams with his clients.  Business Transactions with a Client & Pecuniary Interests Adverse to the Client A business transaction between a lawyer and current client July 2015, Essay 5 July 2012, Essay 2 is only permitted if: (1) all terms are fair and reasonable to Feb 2009, Essay 1 the client; (2) the terms are fully disclosed in writing; (3) Feb 2006, Essay 5 4 of 43 exams the client is advised to consult with outside counsel and is given reasonable opportunity to do so; AND (4) the client consents in writing. This rule also applies when a lawyer knowingly acquires an ownership, possessory, security, or pecuniary interest adverse to the client. This rule DOES NOT apply to: (a) ordinary fee arrangements between a client and lawyer – except when accepting an ownership interest in a client’s business or other property as full/partial payment of legal fees; (b) standard commercial transactions for products/services that the client generally markets to others; and (c) to a charging lien given to secure payment of a contingency fee [CA only].  Proprietary Interest in a Case Under the ABA, A lawyer CANNOT acquire a proprietary July 2018, Essay 3 July 2012, Essay 2 interest (ownership interest) in the cause of action or July 2005, Essay 6 subject matter of litigation the lawyer is conducting for a 3 of 43 exams client UNLESS: (a) acquiring a lien authorized by law to secure the lawyer’s fee or expenses; OR (b) a contract for a contingency fee in a civil case. In CA, there is no direct counterpart to the ABA rule. However, retaining liens are NOT allowed. Upon termination, the lawyer must release to the client all client © 2023 SmartBarPrep | www.smartbarprep.com 165 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY materials and property (except for materials subject to a protective order, non-disclosure agreement, or statute/regulation).  Use of Current Client’s Information A lawyer CANNOT use a client’s confidential information July 2014, Essay 3 July 2003, Essay 1 to the disadvantage of the client UNLESS: (a) the client gives informed consent; OR (b) the use is permitted by the 2 of 43 exams relevant ethical rules.  Gifts from a Client A lawyer CANNOT solicit a client to make a substantial 0 exams gift (including a testamentary gift) to the lawyer or lawyer’s relative UNLESS the lawyer/recipient is related to the client. 0 of 43 exams A lawyer CANNOT prepare an instrument for the client giving the lawyer or lawyer’s relative a substantial gift UNLESS: (a) the lawyer/recipient of the gift is a related to the client; OR (b) [CA only] an independent lawyer advised the client and has provided a Certificate of Independent Review. “Related/Relative” means a close family relationship. A lawyer MAY accept a gift from a client subject to the general standards of fairness and absence of undue influence (i.e. a simple gift such as a holiday present or token of appreciation).  Acquisition of Client’s Literary/Media Rights Under the ABA: Prior to the conclusion of the 0 exams representation, a lawyer CANNOT make/negotiate an agreement giving the lawyer literary or media rights to a 0 of 43 exams portrayal or account (based in substantial part) on information relating to the representation. In CA, no such rule exists. © 2023 SmartBarPrep | www.smartbarprep.com 166 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Financial Assistance & Loans to Clients A lawyer CANNOT provide financial assistance to a client, July 2022, Essay 3 July 2018, Essay 3 except in the following instances: July 2012, Essay 2 o (a) advancing litigation costs/expenses in July 2006, Essay 5 4 of 43 exams contingency cases; o (b) advancing an indigent client’s litigation expenses/costs; o (c) paying a third-party from funds collected or to be collected with consent of the client [CA only]; OR o (d) a personal loan to the client, after the lawyer is retained, with a written promise to repay by the client, and compliance with relevant ethical rules (current client conflicts rule and business transactions with client rule) [CA only]. Under the ABA, loans to clients for personal expenses are never permitted. Under the ABA, this rule applies only in connection with pending or contemplated litigation. In CA, the rule applies in all situations.  Payment of Legal Fees by a Third-Party A third-party MAY pay a client’s legal fees if: (1) the client July 2010, Essay 2 Feb 2004, Essay 3 gives informed consent (in CA, informed written consent is Feb 2003, Essay 4 required); (2) there is no interference with the lawyer’s 3 of 43 exams independence of professional judgment or the lawyer-client relationship; AND (3) information related to the representation remains confidential. In CA, the informed written consent requirement DOES NOT apply to a lawyer rendering legal services on behalf of any public agency (or nonprofit organization) that provides legal services to the public or other public agencies.  Serving on the Board of a Client’s Organization If a lawyer seeks to serve as a board member for a July 2015, Essay 5 July 2005, Essay 3 corporation/organization he represents, he must do so effectively AND without jeopardizing his ethical duties to 2 of 43 exams the company as his client. A director who is also a lawyer of the company is held to a higher standard in their knowledge of company matters. © 2023 SmartBarPrep | www.smartbarprep.com 167 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Aggregate Settlements & Pleas If a lawyer represents multiple clients in a case, the lawyer 0 exams MUST obtain informed written consent of each client before entering into an aggregate settlement of claims (in a 0 of 43 exams civil case) OR guilty or nolo contendere pleas (in a criminal case). However, this rule DOES NOT apply to class action settlements subject to court approval.  Limiting Liability to a Client In CA, a lawyer CANNOT contract to prospectively limit July 2022, Essay 3 Feb 2016, Essay 3 the lawyer’s liability to the client for malpractice. Under the ABA, a contract prospectively limiting the 2 of 43 exams lawyer’s liability for malpractice is permitted if the client is independently represented in making the agreement. Under both the ABA and CA, a lawyer CANNOT settle a claim (or potential claim) for professional malpractice liability, UNLESS the client is: (a) represented by an independent lawyer for the settlement; OR (b) advised in writing that the client may seek the advice of an independent lawyer and is given a reasonable opportunity to do so.  Sexual Relations with Clients Under both the ABA and CA, a lawyer CANNOT have Feb 2021, Essay 4 Feb 2016, Essay 3 sexual relations with a current client UNLESS a consensual July 2006, Essay 5 sexual relationship existed before representation. July 2005, Essay 6 4 of 43 exams o In CA, a lawyer’s spouse or registered domestic partner are specifically excluded from the definition of “current client”. When the client is an organization, this rule also prohibits a lawyer for the organization (whether inside counsel or outside counsel) from having a sexual relationship with a constituent of the organization who supervises, directs, or regularly consults with that lawyer concerning the organization’s legal matters. In addition to the above, a lawyer must comply with all other applicable ethical rules. A conflict to one lawyer under this rule is NOT imputed to other lawyers in the firm. © 2023 SmartBarPrep | www.smartbarprep.com 168 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Organization as Client: Lawyer Represents the Organization A lawyer employed by an organization (i.e. a corporation or Feb 2020, Essay 2 July 2016, Essay 6 LLC) represents the organization acting through its duly July 2015, Essay 5 authorized constituents (directors, officers, employees, 3 of 43 exams owners). In this situation, the lawyer must act in the best interests of the organization. The lawyer representing the organization MUST explain the identity of the client when dealing with constituents that have adverse interests to the organization. A lawyer MAY also represent the officers, directors, or managers of the organization individually, BUT must: (1) abide by applicable conflict of interest rules; AND (2) obtain consent to the dual representation (when such consent is required under the rules) by (a) an appropriate official of the organization – other than the person to be represented, or (b) the shareholders.  Organization as Client: Reporting Violations A lawyer MUST “report up” the actions of constituents Feb 2020, Essay 2 July 2016, Essay 6 within an organization under certain circumstances. Specifically, when a lawyer knows a constituent is acting in 2 of 43 exams a manner that (1) violates the law or a legal obligation AND (2) that action is likely to result in substantial injury to the organization, the lawyer must report those actions up to a higher authority in the organization – including the highest authority if necessary. o However, the lawyer DOES NOT have to report up if he reasonably believes that it’s not in the best interest of the organization to do so. Under the ABA: If the highest authority within the organization refuses to change course in a timely manner, the lawyer MAY report outside of the organization if: (1) the action or refusal to act is clearly a violation of law; AND (2) the lawyer reasonably believes the violation will result in substantial injury to the organization. When reporting outside the organization, the lawyer may only reveal confidential information to the extent necessary to prevent substantial injury. © 2023 SmartBarPrep | www.smartbarprep.com 169 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY o However, the above ABA rule DOES NOT apply when the lawyer is hired by the organization to investigate or defend against an alleged violation of law. In CA: If the highest authority within the organization refuses to change course, the lawyer CANNOT report outside of the organization, as that would violate the prohibition on sharing confidential information. The lawyer can continue to act in the best lawful interests of the organization or resign (if appropriate). F. Declining or Terminating Representation  Mandatory Withdrawal A lawyer MUST withdraw from representing a client if: (a) Feb 2022, Essay 4 Oct 2020, Essay 1 discharged; (b) a physical or mental condition of the Feb 2020, Essay 2 lawyer exists (ABA = materially impairs the representation; Feb 2017, Essay 5 7 of 43 exams CA = unreasonably difficult to effectively carry out the July 2014, Essay 3 representation); OR (c) the representation will result in a Feb 2008, Essay 2 July 2001, Essay 4 violation of an ethics rule or other law. In CA, a lawyer MUST also withdraw if he knows or should know that the client is bringing an action (1) without probable cause, (2) for the purpose of harassing or maliciously injuring a person. Proper withdrawal requires the lawyer to: (1) provide timely notice to the client; AND (2) promptly return any unspent legal fees, advanced expenses, and all of the client’s papers and property. A lawyer CANNOT hold the client’s materials pending the payment of his fees. Under the ABA and CA, a lawyer MUST obtain the court’s approval to withdraw after a lawsuit has been filed. © 2023 SmartBarPrep | www.smartbarprep.com 170 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Permissive Withdrawal A lawyer MAY withdraw from representing a client if: (a) Feb 2022, Essay 4 Oct 2020, Essay 1 the client persists on a criminal or fraudulent course of Feb 2017, Essay 5 action; (b) the client has used the lawyer’s services to Feb 2008, Essay 2 5 of 43 exams commit a crime or fraud; (c) the client fails to substantially July 2001, Essay 4 fulfill a obligation after reasonable warning (i.e. payment of legal fees); (d) the representation has been rendered unreasonably difficult by the client; OR (e) other good cause exists. Under the ABA, a lawyer MAY also withdraw if: (a) the withdrawal will not materially damage the client’s interests; (b) the client insists upon taking action the lawyer deems repugnant or has a fundamental disagreement with; OR (c) the representation will result in an unreasonable financial burden on the lawyer. In CA, a lawyer MAY also withdraw if: (a) the client insists on a claim, defense, position, or demand that is unwarranted and cannot be supported by a good faith argument; (b) the client freely and knowingly consents; (c) there is an inability to work with co-counsel and withdrawal is in the best interests of the client; (d) the lawyers mental or physical condition makes it difficult for effective representation; OR (e) continuing the representation will likely violate an ethical rule. Under both ABA and CA, an attorney MUST obtain the court’s approval to withdraw after a lawsuit has been filed. G. Duties to the Court  Duty of Candor to the Court A lawyer CANNOT engage in conduct involving dishonesty Feb 2022, Essay 4 July 2021, Essay 2 or fraud. A lawyer CANNOT knowingly: (a) make a false Feb 2018, Essay 1 statement of fact or law to a tribunal; (b) fail to correct a July 2016, Essay 6 12 of 43 exams false statement of material fact or law previously made to July 2014, Essay 3 Feb 2014, Essay 1 the tribunal by the lawyer; (c) fail to disclose to a tribunal July 2013, Essay 1 controlling legal authority known to be adverse (unless Feb 2013, Essay 2 disclosed by opposing counsel); OR (d) offer or use July 2009, Essay 2 evidence that the lawyer knows to be false. July 2005, Essay 6 July 2003, Essay 5 If a lawyer knows/learns he has offered false material Feb 2002, Essay 4 evidence (including witness testimony), the lawyer MUST © 2023 SmartBarPrep | www.smartbarprep.com 171 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY take reasonable remedial measures, including disclosure to the tribunal (if necessary). In CA, disclosure of confidential information is prohibited (absent consent of the client). A lawyer MAY refuse to offer evidence that the lawyer reasonably believes is false EXCEPT FOR the testimony of a criminal defendant.  Witness Perjury A lawyer CANNOT call a witness that he knows will July 2014, Essay 4 July 2013, Essay 1 commit perjury (testify falsely). A lawyer’s knowledge that Feb 2013, Essay 2 evidence is false may be inferred from the circumstances. If Feb 2012, Essay 5 5 of 43 exams a lawyer later learns that a witness committed perjury, the July 2001, Essay 5 lawyer must take reasonable remedial measures. However, a defendant in a criminal case has the constitutional right to testify on his own behalf. In this situation, the lawyer should: o First, try to persuade the client that the evidence should not be offered. o Second, attempt to withdraw from the case (if the persuasion is ineffective). o Third, if the attempt to withdraw is unsuccessful then: ▪ Under the ABA, the lawyer must tell the court, including disclosure of confidential information (if necessary). ▪ In CA, the lawyer must allow the defendant to testify in a narrative fashion. Disclosure of confidential information is prohibited (absent consent of the client). If a lawyer reasonably believes (but does not know) that the testimony is false, he MAY permit or refuse to offer the testimony/proof (the lawyer has discretion). © 2023 SmartBarPrep | www.smartbarprep.com 172 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Ex Parte Communications with the Court A lawyer CANNOT seek to influence the Court or Feb 2014, Essay 1 communicate the merits of a case without ALL parties present (ex parte), UNLESS the attorney is authorized by law 1 of 43 exams to do so. During an authorized ex parte proceeding, a lawyer MUST inform the tribunal of all material facts known that will enable the tribunal to make an informed decision (whether or not the facts are adverse).  Filing Frivolous Claims & Contentions A lawyer has a duty to investigate the Oct 2020, Essay 1 July 2019, Essay 4 claims/defenses/arguments filed on behalf of a client, and Feb 2019, Essay 5 CANNOT file frivolous positions with the Court. A good Feb 2017, Essay 5 8 of 43 exams faith argument for an extension, modification, or reversal of July 2016, Essay 6 Feb 2014, Essay 1 existing law is NOT deemed frivolous. July 2009, Essay 1 o In CA, the rule also specifically prohibits actions, July 2001, Essay 4 defenses, positions, and appeals that lack probable cause AND are intended to harass or maliciously injure. o Under the ABA: At trial, a lawyer SHALL NOT: (a) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; (b) assert personal knowledge of facts in issue except when testifying as a witness; OR (c) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused. Whether a lawyer satisfied his duty to investigate the claims, defenses, and/or legal positions is measured by what a reasonable attorney would do in similar circumstances. A lawyer for a defendant in a criminal proceeding (that could result in jail time) may nevertheless defend by requiring that every element of the case be established. © 2023 SmartBarPrep | www.smartbarprep.com 173 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Obstructing or Altering Discoverable Evidence A lawyer CANNOT unlawfully: (a) obstruct another Feb 2022, Essay 4 July 2019, Essay 4 party’s access to evidence; OR (b) alter, destroy, or conceal July 2013, Essay 1 a document/material with evidentiary value. 3 of 43 exams A lawyer also CANNOT counsel or assist another person to do any such act.  Improper Influence A lawyer CANNOT seek to influence a judge, juror, Feb 2021, Essay 4 July 2009, Essay 2 prospective juror, or other official by means prohibited by law. 2 of 43 exams Additionally, a lawyer CANNOT falsify evidence, counsel or assist a witness to testify falsely, OR offer an unlawful inducement to a witness (i.e. improper payments or causing a person to become “unavailable”). A lawyer CANNOT request a person (other than a client) to refrain from voluntarily giving information to another party UNLESS: (1) the other person is a relative, employee, or other agent of the client; AND (2) the lawyer reasonably believes that silence will not adversely affect the person’s interests.  Proper Discovery Requests & Compliance Under the ABA: July 2019, Essay 4 July 2014, Essay 3 o A lawyer MUST make a reasonably diligent effort to comply with legally proper discovery requests by an 2 of 43 exams opposing party. o A lawyer CANNOT make a frivolous discovery request. In CA, there is no equivalent rule. A violation of a civil or criminal discovery rule or statute does not by itself establish an ethical violation. © 2023 SmartBarPrep | www.smartbarprep.com 174 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Payments to Witnesses A lawyer CANNOT offer an unlawful inducement to a July 2013, Essay 1 Feb 2012, Essay 5 witness or make payments to a witness contingent upon the content of the testimony or outcome of the case. 2 of 43 exams However, a lawyer MAY pay a witness (unless prohibited by law) for: (a) expenses reasonably incurred (i.e. travel expenses, hotel, meals during the time that the witness is required to be present at trial); (b) reasonable compensation for loss of time; OR (c) a reasonable fee to an expert witness.  Lawyer as Witness A lawyer CANNOT act as trial counsel when that lawyer is Feb 2022, Essay 4 Feb 2018, Essay 1 likely to be a necessary witness, UNLESS: (a) the testimony relates to an uncontested issue; (b) the testimony 2 of 43 exams relates to the nature and value of legal services rendered in the case; (c) the lawyer’s disqualification would create a substantial hardship on the client [ABA only]; OR (d) the lawyer has informed written consent of the client [CA only]. Trial counsel is also prohibited from giving testimony at trial unless one of the above exceptions apply. A lawyer MAY act as trial counsel where another lawyer in same firm is likely to be a necessary witness, unless a conflict of interest exists. H. Duty of Fairness to Adversaries  Communication with a Represented Person When a lawyer knows that a person is represented by Feb 2019, Essay 5 Feb 2013, Essay 2 counsel in a matter, the lawyer CANNOT speak to that Feb 2005, Essay 4 person concerning the matter UNLESS: (a) the lawyer has July 2004, Essay 5 4 of 43 exams permission from person’s lawyer – the represented person solely agreeing to speak is insufficient; (b) for communications authorized by law or a court order; OR (c) for communications with a public official, board committee, or body [CA only]. Subject to the exceptions above, this rule also covers any employee or agent of an organization whose communication might bind or be imputed to the represented organization. © 2023 SmartBarPrep | www.smartbarprep.com 175 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Trial Publicity – Extrajudicial Statements to the Public A lawyer participating in an investigation or litigation (i.e. Feb 2014, Essay 1 July 2013, Essay 1 prosecutor, defense counsel) CANNOT make extrajudicial July 2009, Essay 2 statements to the public on that matter, which (1) the 3 of 43 exams lawyer knows (or should know), (2) will be disseminated by means of public communication, AND (3) will have a substantial likelihood of materially prejudicing the case or influencing jurors/potential jurors. Several exceptions exist, including statements: (1) to protect the client from substantial undue prejudice from recent publicity that was not self-initiated – the statement must be limited as is necessary to mitigate the adverse publicity; (2) of the claim, offense, defense, or identity of persons (unless prohibited by law); (3) information in a public record; (4) to inform the public of an ongoing investigation; (5) requesting assistance in obtaining evidence; (6) warning of danger when a likelihood of substantial harm exists; and (7) certain information in a criminal case – identity/residence/ occupation/family-status of the accused, info necessary to apprehend the accused, fact/time/place of arrest, identity of investigating/arresting officers and agencies, and length of investigation. Additionally, prosecutors MUST exercise reasonable care to prevent others under their supervision/direction from making extrajudicial statements that the prosecutor would be prohibited from making.  Special Rules for Prosecutors Prosecutors in criminal cases are often held to a higher Feb 2014, Essay 1 July 2009, Essay 2 standard because they have a duty to administer justice. Prosecutors may only proceed with a case if probable 2 of 43 exams cause exists. Probable cause exists if there are (1) sufficient facts, (2) to lead a reasonable person to believe, (3) that a crime was committed, and (4) that the defendant committed the crime. Prosecutors MUST timely disclose any exculpatory or mitigating evidence (evidence that tends to negate guilt) known to the prosecutor within a sufficient time to allow the © 2023 SmartBarPrep | www.smartbarprep.com 176 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY defendant to properly prepare for trial. An exception exists when a protective order of the court relieves the prosecutor of this responsibility. Prosecutors must make reasonable efforts to assure that the accused has been advised of the right to (and procedure for obtaining) counsel, and has been given reasonable opportunity to obtain counsel. Prosecutors CANNOT seek to obtain from an unrepresented accused a waiver of important pretrial rights (i.e. the right to a preliminary hearing). A prosecutor MUST seek to remedy a conviction when he knows of clear and convincing evidence establishing that a convicted defendant did not commit the crime. A prosecutor MUST promptly disclose new credible and material evidence that creates a reasonable likelihood that a convicted defendant did not commit the crime. If the conviction was obtained in the prosecutor’s jurisdiction, the prosecutor MUST make reasonable efforts to cause an investigation to determine if the defendant was wrongly convicted.  Threat of Criminal, Administrative, or Disciplinary Charges In CA, a lawyer CANNOT threaten to present criminal, Feb 2021, Essay 4 Feb 2019, Essay 5 administrative, or disciplinary charges to obtain an July 2011, Essay 4 advantage in a civil dispute. 3 of 43 exams o This rule DOES NOT apply to: (a) a threat to bring a civil action; (b) actually bringing such charges; (c) stating that the lawyer will pursue all available remedies; OR (d) a threat to initiate a contempt proceeding for failing to comply with a court order. Under the ABA, there is no equivalent rule. © 2023 SmartBarPrep | www.smartbarprep.com 177 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY I. Compensation for Legal Services  Amount of Lawyer’s Fees Under the ABA, a lawyer’s fee must be reasonable. July 2022, Essay 3 July 2018, Essay 3 In CA, the fee cannot be unconscionable or illegal. July 2013, Essay 1 “Unconscionability” has been described by the California July 2010, Essay 2 8 of 43 exams Supreme Court as a fee that is so exorbitant and wholly Feb 2009, Essay 1 July 2008, Essay 1 disproportionate to the to the services performed as to July 2005, Essay 6 shock the conscience. Feb 2004, Essay 3 Factors to determine whether the fee is ethical include: the time, skill, experience, degree of specialty, and difficulty required for the task; preclusion of other employment; amount and whether the fee is fixed/contingent; relationship with the client; services performed and results obtained; and whether the lawyer engaged in wrongdoing (fraud, overreaching, failure to disclose).  General Fee Agreements Under the ABA, general fee agreements are NOT required Feb 2020, Essay 2 July 2018, Essay 3 to be in writing (except for contingency fee arrangements). July 2017, Essay 2 However, the ABA requires that the fee be communicated Feb 2009, Essay 1 4 of 43 exams to the client (a writing is encouraged, but not required). In CA, ALL fee agreements must be in writing UNLESS: (a) the fee to be charged is $1,000 or less; (b) the work is routine work for a regular client; (c) the client is a corporation; (d) the client states in writing, after full disclosure, that a written fee agreement is not required; (e) an emergency to avoid foreseeable prejudice to the client’s rights/interests; OR (f) circumstances making a written agreement impractical. In CA, fee agreements MUST include: (1) how compensation is calculated; (2) the nature of legal services to be provided; AND (3) the responsibilities of the lawyer and client. © 2023 SmartBarPrep | www.smartbarprep.com 178 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Contingency Fee Agreements A contingency fee agreement is an agreement between the July 2022, Essay 3 Feb 2021, Essay 4 lawyer and client, stating that the lawyer’s fees will be paid July 2018, Essay 3 out of any recovery the client receives. Feb 2016, Essay 3 8 of 43 exams Requirements: July 2013, Essay 1 July 2012, Essay 2 o A contingency fee agreement MUST: (1) be in a July 2006, Essay 5 writing signed by the client; AND (2) include (i) the July 2005, Essay 6 percentage of recovery the lawyer will take, (ii) the expenses that will be deducted from recovery, and (iii) whether the lawyer’s percentage is taken out before or after expenses. o In CA, the writing must also include: (3) how work or expenses not covered by the contingency fee will be charged; AND (4) that the fee is not set by law and is negotiable. When Prohibited: The ABA and CA prohibit contingency agreements for: (i) domestic relations matters when payment is contingent upon securing a divorce or upon the amount of alimony/support/property settlement obtained – but contingency fees for recovery of post-judgment balances is allowed; and (ii) representing a criminal defendant. Reasonable Fee: o Failure to comply with these rules renders the agreement voidable at the option of the client, but the lawyer will still be entitled to collect a reasonable fee. o A lawyer is also entitled to a reasonable fee when: (a) there is a division of contingent fees between successive lawyers (i.e. a contingency fee lawyer has withdrawn with good cause OR is discharged by a client prior to deriving a recovery, and there is a later recovery); OR (b) a disqualified lawyer may be entitled to recovery for services performed prior to their removal under the unjust enrichment doctrine. The lawyer has the burden of proof to establish the reasonable fee. © 2023 SmartBarPrep | www.smartbarprep.com 179 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Advance Payments & True Retainers A lawyer MAY require advance payment of a fee from a 0 exams client (commonly mislabeled as a “retainer”), BUT is obliged to return any unearned portion. 0 of 43 exams In CA, a lawyer MAY charge a non-refundable “true retainer”, but ONLY IF the client agrees in writing after disclosure that the fee is non-refundable. A true retainer is a fee paid to the lawyer to ensure the lawyer’s availability, but not as compensation for legal services.  Fee Divisions Among Lawyers A lawyer MAY generally share fees with other lawyers July 2013, Essay 1 Feb 2010, Essay 2 inside of the firm. July 2002, Essay 3 Under the ABA, fees CANNOT be shared with lawyers 3 of 43 exams outside of the firm UNLESS: (1) the total fee is reasonable; (2) the client agrees (including the share of each lawyer) and the agreement is confirmed in writing; AND (3) the division is proportional to the work done by each lawyer, unless each is jointly responsible. In CA, “pure referral fees” ARE ALLOWED – meaning that fees can be shared with a lawyer outside the firm without requiring that referring lawyer’s continued involvement in the matter. However, the following is required in order to share fees with a lawyer outside of the firm: (1) the lawyers enter into a written division agreement; (2) the client consents in writing after full written disclosure; AND (3) the total fee is not increased by virtue of the fee division agreement.  Sharing Legal Fees with Non-Lawyers A lawyer or law firm CANNOT share legal fees with a Feb 2021, Essay 4 July 2013, Essay 1 non-lawyer (including referral fees), except for: (a) death Feb 2012, Essay 5 benefits paid to the deceased lawyer’s estate or heirs; (b) July 2008, Essay 1 6 of 43 exams payments to a lawyer’s estate/representative for the Feb 2008, Essay 6 purchase of the lawyer’s practice; (c) compensation or July 2004, Essay 5 retirement plan payments to non-lawyer employees – even if the plan is based on profit-sharing; (d) court-awarded legal fees shared with a non-profit organization that employed, © 2023 SmartBarPrep | www.smartbarprep.com 180 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY retained, or recommended the lawyer; (e) a lawyer referral service operated in accordance with California’s minimum standards [CA only]; OR (f) non-court-awarded legal fees shared with a non-profit organization wherein (i) the fees arise from settlement or other resolution of a matter, (ii) in which the non-profit organization employed, retained, or recommended the lawyer, (iii) the non-profit qualifies as a 501(c)(3) organization under the Internal Revenue Code, (iv) the lawyer entered into a written agreement to divide the fee with the non-profit, (v) client consent is obtained in writing, and (vi) the total fee charged is not increased solely by the agreement to divide the legal fees [CA only]. J. Information About Legal Services  Communications Concerning a Lawyer’s Services A lawyer CANNOT make a false or misleading 0 exams communication about the lawyer or the lawyer’s services. A communication is false or misleading if it: (a) contains a 0 of 43 exams material misrepresentation of fact or law; OR (b) omits a fact necessary to make the statement not materially misleading.  Advertising Legal Services An advertisement for legal services is permitted in all July 2013, Essay 1 Feb 2012, Essay 5 formats if it: (1) is not false or misleading; (2) identifies at July 2004, Essay 5 least one lawyer or law firm responsible for its content; (3) 3 of 43 exams does not state/imply that the lawyer is certified as a specialist in a particular field of law, unless the lawyer is certified as such by an appropriate entity; AND (4) [CA only] clearly includes the word “Advertisement”, unless it’s apparent that the communication is an advertisement. A lawyer is generally permitted to state that the lawyer “concentrates in,” is a “specialist,” practices a “specialty,” or “specializes in” particular fields of law. © 2023 SmartBarPrep | www.smartbarprep.com 181 Purchased by Alyssa Cates, [email protected] #17171974  11 PROFESSIONAL RESPONSIBILITY  Solicitation of Clients A lawyer or his agent CANNOT solicit a person by in- Feb 2021, Essay 4 July 2013, Essay 1 person, live telephone, or real-time electronic contact for Feb 2012, Essay 5 professional employment when a significant motive is for July 2005, Essay 6 5 of 43 exams pecuniary gain UNLESS the person: (a) is a lawyer; (b) July 2004, Essay 5 has a family, close personal, or prior business/professional relationship with the lawyer/law firm; OR (c) [ABA only] routinely uses the type of legal services offered for business purpo