Professional Responsibility

Business transaction or possessory interest

1.8 or 3-300

 

Not enter into business transaction or acquire possessory interest

 

UNLESS

 

1) fair and reasonable terms

2) client advised in writing

3) gives written informed consent

Accepting compensation from other than client

1.8(f) or 3-310 (F)

 

Shall not accept compensation from one other than client

 

UNLESS

 

1) no interference with lawyer independence

2) information protected

3)member obtains client’s informed consent

Concurrent conflict of interest

1.7 or 3-310

 

Shall not represent client if representation involves concurrent conflict of interest

 

UNLESS

 

1) reasonable belief of ability to provide competent and diligent rep

2) rep not prohibited by law

3) rep does not involve assertion of claim by one client against another in same litigation or other proceeding before a tribunal, AND

4) written informed consent of each

Aggregate settlement

1.8(g) or 3-310(d)

 

Representing 2 or more clients shall not participate in aggregate settlement unless lawyer informs everyone of what each is getting and get written, informed consent

 

California variant:

No obligation to tell everyone what others are getting

Candor towards tribunal

3.3 or 5-200

 

Candor towards tribunal

 

Shall not make flase statement or fail to correct false statement, fail to disclose adverse authority, offer false evidence. If knows of false evidence, take remedial measures including disclosure to tribunal.

Contacting jurors

3.5 or 5-320

 

Shall not contact jurors during trial or after if court said no, juror said no, or involves mirep, coercion, duress…

Talking to unrep party

4.3

 

When talking to unrep, not state or imply lawyer is disinterested. E.g., say to opposing part “hi i am an officer of the court and want to ask a question” 

Obligation in dealing other than with client

4.1

 

In dealings other than with client, not make false statement of fact or law or fail to disclose material fact when disclosure encessary to avoid assisting in criminal or fraudulent act

Dealing with rep person

4.2

 

In communicating with rep person, not communicate about subject of rep unless consent of other lawyer

Can advertise in media?

7.2(a)

 

May advertise in media

Giving anything of value to personr ecommending services

7.2(b)

 

May not give anything of value for advertising 

 

except

 

reasonable fees

legal service plan or non profit

pay referral fees with client’s information (no written consent) and no exclusive reciprocal agreement

 

 

Truth in advertising

7.1

 

No false or misleading communication

Soliciting in person

7.3(a)

 

No soliciting in person

 

Targeted mail okay but

 

No targeted mailing if person indicates desire to not be contacted or harrasment etc.

Supervisor’s responsibility

5.1

 

Supervisor’s responsibility to take reasonable measure to ensure supervised lawyers’ compliance

Supervisor’s duty wrt nonlawyer professionals

5.3

 

Same duty of supervisors to non-lawyers as lawyers

Dishonesty, fraud, misrep

8.4

 

No dishonesty, fraud, etc.

Resaonable fees

1.5(a)

 

Fees should be reasonable 

California moral character requirement

CBPC 6060


To be qualified to practice law in this state, a person must be of good moral character


In re Glass

Candor in bar application

8.1 or 1-200

 

Applicant shall not knowingly make false statement or fail to disclose fact necessary to correct misapprehension

What is professional misconduct

8.4

 

Professional misconduct to:

(a) violate or attempt; assist

(b) crime that reflects badly

(c) dishonesty, fraud, deceit, misrep

(d) prejudicial to justice

(e) exercise improper influence

Supervisor’s responsibility to mitigate if knows

5.1

 

Reasonable efforts to ensure firm has measures in effect. Responsible for another’s violation if he orders it, ratifies it, or is manager and knows but fails to mitigate.

 

Rat rule

8.3


A lawyer who knows that another lawyer has commited a rule violation that raises question of “honesty, trustworthiness, or fitness” shall inform authorities


No equivalent in California

Scope of representation

1.2

 

Scope of representation

 

(a) abide by client decisions

(c) limit scope if reasonable with written consent

(d) may exert good faith attempt to test etc.

Requirements for fees

1.5

 

Fees

 

(a) must be reasonable (4-200)

(b) written agreement preferable

(c) written agreement required if contingent

Keeping client funds

1.15 or 4-100

 

Keep client funds separate. In case of dispute, hold until dispute is resolved.

 

 

Decline or terminate rep

1.16

 

Can decline or withdrawl if rep will violate rules or lawyer incompetent.

 

Can withdraw if (a) can withdraw without material adverse effects, (b) client persists in crime/fraud, (c) client insists on action that lawyer considers repugnant or “fundamental disagreement”, (d) client fails to fulfill obligation to lawyer and has been given reasonable warning of withdrawal, (e) rep will result in unreasonable financial burden, (f) other good cause

Sharing fees or form Pship with non-lawyer

5.4

 

Not allowed

Frivolous claim

3.1

 

Not bring action without basis in law that is not frivolous

Using info from client for pecuniary benefit

1.8(b)

 

Can not use info only if it is to disadvantage of client unless informed consent

Reveal confidential info to prevent a crime

1.6

 

Only required to reveal if crime is furtherance of which client has used lawyer’s services for

Lawyer as witness

3.7

 

precludes Lawyer from acting as advocate at a trial in which she is likely to be a necessary witness unless one of 3.7(a)’s exceptions applies

Financial assistance to client

1.8(e)

 

Not allowed except advance court costs and litigation expenses contingent on outcome or court costs and expenses on behalf of indigent client

Accepting compensation from one other than client

1.8(f)

 

Shall not accept unless informed consent, no interference with lawyer’s independence and judgment, and info of client protected

Prospective client has conflict with existing client. Can other lawyer in same law firm take on case?

1.10

 

No. Only when disqualification arises out of personal interest or prior firm (with screening)

Aggregate settlement or aggregate plea

1.8(g)

 

Not allowed unless:

(a) each client written informed consent

(b) disclosre about existence of all claims involved

Communication

1.4

 

Promptly inform client of any decision, reasonably consult with client about means, keep client reasonably informed, comply with RFIs

Limiting future liability

1.8(h)

 

Shall not do it unless client independently represented in making agreement

Reasonable diligence and promptness
1.3
Withdrawal only if

1.16

 

(a) no material adverse effects

(b) client engaged in criminal/fraud actions

(c) client uses lawyer services for (b)

(d) repugnant or fundamental disagreement with client wish

(e) client fails to fullfill obligation and has reasonable warning of withdrawal

(f) unreasonable financial burden on lawyer

(g) other good cause

Making statement or evidence known to be false

3.3

 

Lawyer shall not willingly make statement or offer evidence

Extension, modification, reversal of law

3.1

 

Not bring frivolous actions unless there is basis in law and good faith argument for change

 “I personally don’t want anything with your false case but you should keep looking because there are plenty of lawyers who would represent you.” 

1.2(d)

 

shall not “counsel a client to engage, or assist a client, in” crime/fraud

Perjurious material comes to light

3.3(a)(3)

 

“take reasonable remedial measures, including, if necessary, disclosure to the tribunal.” 

 

Client reveals he committed fraud during rep (not perjury or false evidence)

1.6(b)

 

May reveal to prevent substantial financial injury

Unrepresented person

4.3

 

Lawyer can deal as long as he does not state or imply he is disinterested. If misunderstood, shall clarify. Shall not give legal advice.

Contact with rep person

4.2

 

prohibits this kind of contact unless the lawyer has Plaintiff’s lawyer’s consent or the communication is authorized by law or court order.

failure to disclose to the tribunal adverse legal authority and not disclosed by opposing counsel

3.3(a)(2)

 

Disclosure required

At trial “If you knew Witness like I do, you woudl know he is telling thet ruth”

3.4(e)

 

Lawyer prohibited from vouching for credibility of witness

Lawyer asks witness to go to Canada during trial to be outside jurisdiction of court

8.4(d)

 

Conduct prejudicial to administration of justice prohibited

Lawyer offers money to witness contingent on outcome

3.4(b)

 

Prohibited from offering inducement to witness that is prohibited by law (and this is PROBABLY prohibited)

state or imply an ability to influence improperly a government agency or official.

8.4(e)

 

Prohibited

Accepting private employment in matters in which they had substantial responsibility while acting as public employees

1.11(a)

 

Prohibited unless former govt employer gives written informed consent

Advance fees and expenses

1.15(c)

 

Keep in separate account

Self-laudatory advertisements

7.1

 

Allowed because 7.1 prohibits only false and misleading statements

Pay somebody to recommend your services

7.2(b)

 

Referral fees allowed only if

(i) the reciprocal referral agreement is not exclusive and (ii) the client is informed of the agreement’s existence and nature.

Stating specialization versus saying ‘certified as a specialist’

7.4(d)

 

only stating or implying that one is certified as a specialist.

Lawyer as witness

3.7

 

Shall not act as advocate in trial where lawyer is necessary witness unless (a) testimony on uncontested issue, (b) testimony related to nature and value of legal services rendered, (3) disqualification would work substantial hardship on client

Fee for referral

1.5(e)

 

Allowed only if:

(a) proportional to effort OR joint responsiblity

(b) client gives written consent

(c) reasonable total fee

Duty of confidentiality vs ACP

1.6

 

duty of confidentiality extends to information regardless of its source or form, so long as it relates to the representation, but ACP relates only to communications between privileged persons (and agents).


Confidentiality – Always applies

ACP – Only in evidence context

Secrets revealed to lawyer after conclusion

1.6

 

Information “relating to representation” is confidential regardless of how much time elapses

 

BEFORE or AFTER (1.6 Cmt 18) rep began and ended does not matter

Confidential information that is in the public record

1.6

 

There is no public record exception to confidentiality. Restatement says that information that is “generally known” is exempt from confidentiality

What kinds of criminal acts constitute professional misconduct

8.4(b)

 

Acts that reflect adversely on honesty, trustworthiness, or fitness as lawyer

 

In some jx, felony = automatic disbarrment

 

Pattern of even minor offenses enough

Seek leverage in civil or criminal by blackmail

8.4

 

No clear language but considered violation through conduct prejudicial to administration of justice

Obligation to take a client?

6.2

 

If appointed by court, lawyer shall not seek to avoid appointment

 

Can lawyer withdraw without cause if no material adverse effect?

 

1.16

 

Yes

When is there a lawyer-client relationship

R3d §14

 

  • person manifests intent that lawyer provide services 
  • the lawyer fails to manifest a lack of consent 
  • lawyer “knows or reasonably should know that the person reasonably relies on the lawyer to provide the services

Duties to prospective client

1.18

 

Confidentiality and conflict limitations apply

 

Same screening rules apply as 1.7

Fee setting by Bar

Goldfarb v VA State Bar


Prohibited

Communication about how fee is calculated

1.5

 

To happen, PREFERABLY in writing, before or within reasonable time of starting rep

Can a proprietary interest in contested propery be part of contingent fee?

1.8

 

Yes. Because no right until litigation complete.

Unconsentable conflicts when there is a claim

1.7(b)

 

No consent if Client 1 makes claim against Client 2 and lawyer also represents Client 2 in same or another proceeding 

Future conflicts waivable

1.7

 

Yes, as long as it is not unconsentable conflict per 1.7(b)

Sexual relationship with client

1.8(j)

 

Not unless it existed before client-lawyer relationship formed

Former client conflict

1.9

 

Not represent new client in same or substantially related matter if new client’s interests materially adverse to interests of former client

Entering into biz relationship

1.8

 

No relationship unless:

 

(1) terms reasonable and fully disclosed in writing

(2) client advised of desirability of seeking independent counsel

(3) client gives informed consent in writing

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Professional Responsibility

1.1 Competence. (3 ways a lawyer can meet competence)
1. Necessary study and reasonable preparation
2. Through association with a more experienced attorney
3. If it’s an emergency, what is reasonably necessary
1.2 Scope, Client decisions
1. Decide objectives of representation
Civil – when to settle
Criminal – plea, testify, go to trial
1.2 Scope, Express limitation of scope…
Lawyers can limit the scope of representation where reasonable, with informed consent
1.3 Diligence
Handle your shit.

Management of workload/how many matters an attorney takes on

1.4 Communication
“Promptly” – works primarily with other rules.
1.6 Confidentiality
1. All information relating to representation SHALL not be revealed.
1.6 Confidentiality, general exceptions
1. Informed consent,
2. Implied Authorization to carry out representation,
3. Specific 1.6(b) exceptions
1.6(b)permissive (may reveal) exceptions
1. Lawyer reasonably certain of future death or serious injury
2. Attempts at financial crime/fraud where service is used in furtherance
3. Crime/fraud where service was used and lawyer later found out.
4. Legal advice about ethics rules
5. Establish a claim or defense in client v. lawyer litigation
6. Complying with a court order
7. To detect and resolve conflicts of interest (without revealing client’s identity)
4.1 Truthfulness in statements to others
No failure to disclose a material fact to a third person when disclosure is necessary to avoid assisting crime/fraud by client…unless disclosure prohibited by confidentiality (1.6)
1.7 Client Conflicts

Two ways a conflict can exist.

1. Directly adverse positions or
2. A significant risk representation will be materially limited by responsibilities to current client, former client, third person, or personal interests.
1.7 Client Conflicts

When is a conflict consentible?

1. Reasonably believes can provide competent and diligent representation to both
2. Not prohibited by law
3. Not litigation
1.9 Duties to Former Clients

Former client

No representing someone in the same or substantially related matter, where current clients interests are materially adverse to former client’s interests…unless informed consent.
1.9 Duties to Former Clients

Former firm

1. Prohibited where interest is adverse and lawyer acquired information about former client protected by 1.6/1.9(c)
1.9 Duties to former clients

Rule of information

Information of a former client of lawyer OR firm can not be used to disadvantage of former client, OR revealed.
1.10 Imputation of conflicts
A conflict of one lawyer is imputed to entire firm.
1.10 Imputation of conflicts

Exceptions

1. Personal interest and no significant risk of materially limiting.
2. Conflict is from a prior firm and properly “screened”
1.10 Imputation of conbflicts

When a lawyer leaves a firm, lawyer’s former clients do not create conflict for remaining members except:

1. Matter is same or substantially related AND
2. Any remaining lawyer has confidential info
1.13 Organization as a client

General concepts and duties

1. Represents organization through authorized constituants
2. SHALL report internal illegalities likely to result in subst. injury
3. MAY report out the same, only if reasonable belief its necessary to save organization
1.16 Declining or terminating representation

(a) Shall not represent or Shall withdraw when:

1. Representation would violate a rule
2. Physical or mental condition materially impaired
3. Lawyer is discharged
1.16 Declining or terminating representation

(b) MAY withdraw when: (7)

(1) withdrawal can be accomplished without material adverse effect on the interests of the client;

(2) the client persists in a course of action involving the lawyer’s services that the lawyer reasonably believes is criminal or fraudulent;

(3) the client has used the lawyer’s services to perpetrate a crime or fraud;

(4) the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement;

(5) the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled;

(6) the representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client; or

(7) other good cause for withdrawal exists.

1.16 Declining or terminating representation

(c) Permission of tribunal

1. Withdrawal must comply with notice requirements
2. When ordered by a judge to stay, you stay. The end.
1.16 Declining or terminating representation

(d) Upon termination of representation, a lawyer shall

Take steps to the extent reasonably practicable to protect a client’s interests.

EX: Handing over the file, giving adequate notice, etc etc.

4.3 Dealing with unrepresented persons

Three rules

1. Don’t imply disinterest
2. Correct any misunderstanding of your role
3. Don’t give legal advice to parties of adverse interest, except to obtain counsel.
Confidentiality v. Privilege
Confidentiality deals with ethics and civil liability
Privilege is the law of evidence.

*A subpoena can reach confidential info, but not privileged.

Lawyer as agent
Ability to bind client,
Vicarious admissions can be used against client but not bind them
Confidentiality largely overlaps with 1.6 but not exactly.
Lawyer as fiduciary
1. higher duty than ordinary fiduciaries
2. Other business dealings with client, even as “not-lawyer”, must respect fiduciary relationship
Informed consent
Client agrees to proposed course of conduct after lawyer sufficiently explains material risks and reasonable alternatives

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