Professional Responsibility

Applicable Law

(1) California and ABA authorities
-Unless otherwise directed
-ABA Model Rules for majority guidance.

(2) NOT COVERED: Code of Judicial Conduct

Duties Owed by to CLIENT

(1) Confidentiality
(2) Loyalty
(3) Financial Responsibility
(4) Competence
(5) Otherwise act reasonably

Opening Sentence for PR

"The lawyer has a duty of [fill in a duty] to [fill in a person or thing]."

Duties Owed by to Court and Others

(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum
(4) Otherwise act reasonably

To whom does an attorney owe duties to?

(1) Clients & Prospective Clients
(2) Court/tribunal
(3) Adversaries (parties & their counsel)
(4) Profession
(5) Third parties
(6) Public

Mnemonic for Duties Owed

Clients Love Fierce Counsel; Court Feel Differently

CLIENT:
(1) Confidentiality
(2) Loyalty
(3) Financial Responsibility
(4) Competence

OTHERS:
(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum

Duty of Confidentiality

Attorney cannot reveal anything "related to the representation" of a client without her consent.

-Client does not have to request confidentiality

Disclaimer of Confidentiality

Disclaimer MUST be in sufficiently plain terms for a lay person to understand.

VALID
"I understand and agree that Law Firm will have no duty to keep confidential the information I am now transmitting to Law Firm."

INVALID
"I agree I am not forming an attorney-client relationship or a confidential relationship by submitting this question."

Duty of Confidentiality

v.

Attorney-client privilege

(1) Duty of Confidentiality
-PR Rule
-Covers: all communications pertaining to legal services AND disclosures that could reasonably lead to discovery of confidential information by a third party
-Covers information obtained from non-parties

(2) Attorney-client privilege
-Evidentiary Rule
-Covers: only communications pertaining to legal services, not other subjects like business tactics or political consequences.
-Covers information obtained ONLY from parties and their agents

Duty of Confidentiality: 5 Exceptions

(1) Consent
-Implied; or
-Express

(2) Bodily Injury or Death
-CA: act must be criminal; & good faith attempt to (i) dissuade; and/or (ii) disclose
-ABA: any act resulting in substantial bodily injury or death

(3) Pecuniary Loss and Fraud
-CA: NO disclosure
-ABA: Allows IF: (i) used/using legal services to further; & (ii) disclosure would prevent or mitigate substantial financial loss

(4) Attorney Self-Defense
-MalPractice
-Disciplinary action
-Not paying bill

(5) Compelled by Law

Bodily Injury or Death Exception to Confidentiality

ABA

v.

CA

ABA
(1) may disclose what’s necessary
(2) if reasonable belief it is necessary
(3) to prevent an ACT likely to result in
(4) reasonably certain death or substantial bodily harm

CA
(1) If reasonable, make good faith effort to dissuade client
(2) if that fails, inform the client intent to disclose
(3) may disclose what’s necessary
(4) if reasonable belief it is necessary
(5) to prevent a CRIMINAL act likely to result in
(6) reasonably certain death or substantial bodily harm

NOTE:
CA must 1st attempt to dissuade and inform of intent to disclose
CA the act must be CRIMINAL

Pecuniary Loss and Fraud Exception to Confidentiality

ABA

v.

CA

ABA
(1) IF client used or is using your services
(2) to commit the crime; and
(3) disclosure would prevent or mitigate SUBSTANTIAL financial loss.

CA
NOT a recognized Exception

Conflicts of Interest
(The Duty of Loyalty)

RULE
(1) If an interest of you, another client, or a third party
(2) materially limits or
(3) is adverse to loyal representation
(4) conflict of interest exists
(5) disclosure and withdraw necessary

EXCEPTION
(1) Objectively reasonable belief you can represent everyone effectively
(2) Inform each affected client (watch for confidentiality issues)
(3) Clients consents, confirmed in writing

REMEDY
(1) Refuse to take the case
(2) Advise clients to get separate counsel, OR
(3) Withdraw

Conflicts of Interest: Imputed disqualification

RULE:
-All lawyers of a firm share conflicts. This includes private firms or corporate law departments.

EXCEPTION:
(1) conflict arises from previous government service; OR
(2) purely personal relationship
(3) Creation of an "ethical wall"

NOTE:
*CA follows these rules for disqualification, but does not subject a lawyer to discipline for imputed conflicts under its ethical rules

Business Transactions or Adverse Interests Between Attorney and Client

RULE
Allowed IF
(1) fair terms;
(2) full, lay disclosure in WRITING;
(3) opportunity obtain outside counsel; and
(4) written consent

Serving on a Client's Board as a Director

RULE:
Allowed BUT strongly discouraged, almost always a violation of the duties of loyalty and confidentially

NOTE: BOD of a Legal Services Organization
Allowed IF:
(1) legal services organization
(2) not your employer
(3) no knowingly participation in decisions or actions adverse to your clients

Limiting Malpractice and Professional Disciplinary Liability

RULE
Not permitted

EXCEPTION
-Settlement of malpractice claim allowed after written advise to consult an outside counsel

-ABA Only: may limit liability if client is independently represented in making the agreement

Obtaining Publication Rights of an ONGOING Case

RULE:
(1) CA:
-Discouraged, but allowed if the judge believes:
(i)client clearly understands; and (ii) consents

(2) ABA:
-Not allowed before the representation has ended

Attorney Loans and Advances to a Client

RULE:
(1) CA:
(i) prohibits the promise of paying a prospective client's debts
(ii) but allows loans in all matters IF there is a written IOU

(2) ABA
(i) No financial assistance
(ii) Except litigation expenses for indigents;
(ii) Except advance of litigation expenses in contingent fee cases

Conflicting Duties When Circumstantial Evidence is Involved (ring tan)

Confidentiality to the client

Fairness to the court and opposing counsel

Duty of fairness to the court and opposing counsel

Issues re: evidence

A lawyer must not unlawfully alter, destroy, or conceal evidence. Further, it is a crime to destroy or conceal evidence.

3 Malpractice Concepts

(1) Negligence
(2) Breach of Fiduciary Duty
(3) Breach of K

-Discuss ALL

2 Conflict of Interest Concepts

(1) Potential conflicts
(2) Actual conflicts

Any time you see a non-lawyer in a PR question start thinking...

Unlicensed practice of law

Use of Client Information

IF:
(1) disadvantages client; and
(2) without consent

THEN violates:
(3) loyalty; and
(4) confidentiality

Gifts to lawyer or lawyer's family

A lawyer may not...

(1) SOLICIT a substantial gift from a client;

OR

(2) DRAFT a doc to a non-relative client that provides a substantial gift to L or L's relative

If opposing counsel is of "close relations" to L...

L may not oppose that party
*UNLESS:
Informed client consent

"Close relations" includes:
ABA: immediate family
CA: immediate family & shackmates

NOTE:
Not imputed to other firm members

If Trial counsel is a NECESSARY witness

CA (lenient)
(1) may not testify in jury trials
UNLESS:
(2) client consents in writing

ABA (strict)
(1) may not be counsel & witness
UNLESS:
(2) no prejudice to client; and
(3) uncontested testimony OR re: nature/value of services rendered; OR
(4) withdrawal would impose substantial hardship on the client

NOTE:
Not imputed to other firm members

Potential Client Conflicts

L may represent clients with potential conflicts IF
-proper consent of all

NOTE
Almost never may represent if actual conflict exist

Actual Client Conflicts

L may NOT represent if actual conflict exist

NOTE:
L may represent if potential conflicts with
-proper consent of all

May L take a case the is adverse to a client's interest (as opposed to the same matter)?

CA
NO if L is currently representing client
Regardless of the relationship of the cases

*Unless:
policyholder + insurance co as "joint clients"
IF ONLY an indemnity issue

ABA
Probably NO.
Because it is rarely "reasonable"

May L take a case the is adverse to a client's position (former client is not a party)?

YES
(1) consent of both clients; AND
(2) neither would be disadvantaged

If not, L must withdrawal

3 ways client conflicts arise

(1) representing BOTH ∆ and π
-NEVER allowed (unless intermediary)

(2) Opposing a current client's INTEREST (new case)
-Almost NEVER allowed (unless insurance co and client)

(3) Opposing your client's POSITION (legal/illegal)
-Typically ALLOWED w/ consent

Attorney as intermediary

Attorney may represent multiple clients in a single suit when...

(1) Insured & insurance company;
(2) A corporation & directors, officers, employees, or shareholders;
(3) Spouses in a divorce or will

NOTE
Attorney is only acting as an intermediary; reasonable consent is still needed

Duties to former clients when taking on new clients

(1) May not take on a new client with interests materially adverse to a former client
(2) UNLESS former consents

NOTE:
This will violate (i) continuing duty of confidentiality & (ii) loyalty to former client

Former government lawyer now in private practice

CA
-Case law allows screening of government lawyers
-HOWEVER, prosecutors may NOT work on the defense of the same case

ABA
(1) IF the gov lawyer worked "personally and substantially" on a "matter"
(2) THEN COI to work on the same "matter" later in private practice

NOTE:
NOT Imputed IF
(1) screened off;
(2) NO share of fee in that specific matter; AND
(3) Gov employer is notified (need not consent)

Compensation from a 3rd party...

Allowed with informed client consent

Organizational Clients

-Client is the entity

For Securities lawyers:
(i) MUST report up 1st THEN
(ii) to prevent fraud, substantial injury to the org/investors, OR if L's services were used,
(iii) MAY info to the SEC w/o client consent

CA
(i) MAY report up
(ii) Prohibits reporting out
(iii) HOWEVER, federal preemption allows reporting out

Non-contingent fee arrangements must include:

ABA
(1) how the fee is calculated;
(2) what services are covered; and
(3) lawyer and client duties.

CA (same as above +)
(4) in writing,
*Unless:
(i) under $1000;
(ii) corporate client;
(iii) routine services for a regular client; OR
(iv) emergency or impractical

NOTE:
Charging liens are ONLY allowed in contingent fee arrangements

Contingent fee arrangements must include:

ABA
(1) writing
(2) signed by the client
(3) percentage
(4) expenses to be deducted
(5) whether percent is taken before or after expenses

CA (same as above +)
(6) how additional services will be paid
(7) negotiable ("fees not set by law")
(*) charging liens allowed

NOTE:
-If fired before the completion, seek recover in quantum meruit for value of services already rendered.
-Liquidated damages provision must be reasonable (k law)

Contingent fee arrangements prohibited for...

ABA
(1) domestic relations
(2) criminal cases

CA
(1) silent on criminal cases
(2) allowed for divorces IF
"fee arrangement won't encourage the breakup of an otherwise savable marriage."

Excessive fees

ABA
-Fees must be reasonable, taking into account the labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc.

CA
-Fees must not be unconscionably high

Fee Splitting

(1) Lawyers from same firm
-allowed

(2) Lawyers from other firm
-allowed IF
-total fee is ethical, disclosed in writing, and consent
*ABA: proportional to the work or liability

(3) Non-Lawyers
-NOT allowed
UNLESS:
-"pension" to deceased lawyer's heirs
-non-profit org that employed or referred (ct awarded fees)
-Referral fees to qualified lawyer referral service

Duty to manage client funds

(1) No borrowing or commingling

(2) Safeguard client’s property

Trust Account:
(i) Large funds
individual client; interest bearing; interest belongs to the client
(ii) Small funds for short period
pooled client trust account; checking account only; interest used for bank's services remainder goes to the state bar to fund legal services for the poor

Disputed claim (fees or 3rd party)
-withhold portion in trust account until resolution of claim

(3) Accounting
-keep good records
-render accountings
-notify of moneys received
-pay promptly money due to him

*CA: records kept for 5 years after final distribution

Duty of competence

(1) Render competent service to your client

(2) Failure:
(i) discipline by the Bar
(ii) disqualification as counsel; and
(iii) civil malpractice liability

(3) Competence
-legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation

NOTE:
L may take case if he is incompetent in that area IF:
-can put in the time to learn it without undue expense or delay to your client, OR
-associates with a lawyer competent in the area

Malpractice

(1) Civil case brought by a π for money damages

(2) π must prove a legal claim:
(i) breach of contract
(ii) tort (reasonable attorney standard)
(iii) Breach of duty (tort)

Is an attorney subject to ethical violations also per se liable for a malpractice action?

NO

While an ethical violation may be relevant evidence of malpractice, it does not create a presumption of it

Duty of diligence

Diligently, promptly and zealously pursue your case to completion.

Duty to communicate

Keep your client informed about the case
-settlement offers
-return phone calls

*Settlement offer made to joint clients
-convey offer to ALL clients
-acceptance ONLY after ALL agree on the division

Is there a duty to represent a potential client?

NO
-L is free to accept or reject any case

HOWEVER
-Duty to the public and profession suggests acceptance of:
(a) defenseless or oppressed
(b) 50 hours of pro bono work per year for indigent clients

Duty to Reject Cases

L MUST reject a case IF acceptance would violate:
-law OR
-ethical rule

Typical problems:
-L not in physical or mental shape (duty of competence); OR
-Frivolous legal argument (duty of candor of to the court)

Client Powers

v.

Attorney Powers

(1) Client makes decisions re: substantive rights:
-testify in a criminal case
-accepting plea bargains or settlement offers

(2) Lawyer makes decisions re procedure and legal strategy
-choice of motions
-what discovery to seek
-who to call as a witness (besides client in a criminal matter)

*Disagreement:
L may limit the scope of representation, with client consent.

Duties to withdrawal from representation

(1) Mandatory withdrawal
-If continuing would violate a law or ethical rule

(2) Permissive withdrawal
-If you convince the court there is good cause; and
-withdrawal will not cause undue delay or disruption

Procedures for withdrawal

(1) Timely notice to the client; and

(2) Return:
(i) unspent fee and expense advances, and
(ii) all material papers and property of the client
-even if client has not paid

State Limits on Advertising and Solicitation

(1) Advertising and Solicitation are protected by 1st amendment

(2) Commercial speech analysis (intermediate scrutiny):
(i) Gov's burden
(ii) substantial interest (preserving dignity profession, or citizen privacy)
(iii) directly advances that interest
(iv) narrowly tailored

Rules Re: Advertising

(1) Must not be false or misleading

(2) No unjustified expectations or unverifiable comparisons
(*) CA: guarantees, warranties, or predictions presumed improper
(*) CA: no testimonials or endorsements w/o express disclaimer that they are not a GWP

(3) No claims of specialization UNLESS "certified specialist"
*CA "certified specialist"
-Board approves based on:
-Experience, an Examination, Education, and Evaluations
*ABA "certified specialist"
-Org approves
-Certifying organization must be identified in communications

(4) Must not harass

(5) Targeted direct mail must stated "Advertising Material"

(6) Records of the content and placement of any ad for 2 years.

Rules Re: Solicitation

(1) Don’t seek professional employment
(2) for pecuniary gain
(3*) by initiating a live or telephone contact
(4) with a prospective client of no prior professional, personal or family relationship

*ABA
"real time electronic contact”
*CA
Strictly live or telephone contact

NOTE:
These rules apply to agents of the attorney

Solicitations presumed improper in CA

(1) at the scene of an accident or
(2) en route to a medical facility
(3) to those known to be physically or mentally vulnerable

Duties of Candor and Fairness

A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, misrepresentation

These duties may override conflicting duties of confidentiality and loyalty to your client

Duty to present Facts and Evidence truthfully

(1) No false statement of material fact
(2) No offer of evidence known false
(3) Must correct a false statement of material fact or law previously made

Client Perjury

Must not knowingly facilitate client perjury.

(1) Civil case:
-Must refuse to call the client as a witness

(2) Criminal case
(i) Try to withdraw form the case, if that fails,
(ii) Split:
*CA: Allow D to testify in narrative fashion, but do not further the deception, but may not disclose
*ABA: tell the judge, constitution does not protect perjury

NOTE:
Criminal case issues:
-5th Amendment right to testify
-6th Amendment right to the effective assistance of counsel

Duty to produce evidence

(1) Must not suppress any evidence regardless of your duty of loyalty

(2) Must not obstruct access/tamper with fruits or instrumentalities of a crime

(3) May NOT disclose communications relating to the evidence (confidential)

Interference with evidence

(1) Look but don’t touch
-looking at evidence not yet discovered by the other side does not require disclosure

(2) If you touch you must reveal
-but may not reveal communications
-may not reveal source of evidence if confidential

(3) May retain evidence for a reasonable time to prepare his client's case

(4) Rules change in "ex parte" proceedings b/c opposing counsel is not present

(5) Prosecutors special duty
-timely disclose evidence favorable to the defense

Duty to state the law truthfully

(1) No knowingly false statement of law
(2) Must cite to adverse authority, if controlling and directly on point

Duty to uphold the law

(1) No representation if it would require you to commit or assist in committing a crime

(2) Disclosure to prevent death serious bodily injury:
-ABA: allowed if reasonably likely to result
-CA: requires the act to be criminal as well

(3) Disclosure to prevent substantial financial injury:
-ABA: permits if your services were employed in the crime
-CA: forbids L from revealing

General duty of fairness

L has a duty to behave honestly in all dealings, whether or not engaged in the practice of law.

When there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession.

NOTE:
Default Rule

Communication with a party represented by counsel

CA:
-NO communication with a party represented by counsel on the subject of your inquiry
-UNLESS: (i) authorized by law; or (ii) consent of opposing counsel

ABA:
Extends this to all "persons" represented by counsel

Communications with EEs of an entity represented by counsel

ABA
-Consent Required for officer, director or managing agent

CA
-Consent required for any EE who can make a vicarious admission
-This includes, but is not limited to, O,D,MA (above)

NOTE
Consent is NOT required to speak with former EEs

Communications with the press

(1) May NOT interfere with a ∆'s right to a fair trial.
-avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case

(2) Exception
-matters in the public record or routine booking information
-warning the public
-informing the public of an ongoing investigation or asking for help
-statements required to protect your client from substantial undue prejudice from recent publicity not self initiated

(3) Prosecutors
-Must not make comments that have a substantial likelihood of heightening public condemnation of the accused
-Duty to seek justice, not just to win cases
-Must have probably cause to pursue a case

Prosecutors

Prosecutors have heightened duties:
(1) Must not make comments that have a substantial likelihood of heightening public condemnation of the accused

(2) Duty to seek justice, not just to win cases

(3) Must have probably cause to pursue a case

(4) Must disclose any evidence relevant to ∆'s defense

Duty to preserve the impartiality and decorum of the tribunal

(1) Don't try to influence anybody improperly
-Before and during trial you must not talk to any prospective or empanelled Juror
-After trial is over, if local law permits, you may interview jurors so long as you do not harass them or influence their future jury service

(2) No "chicanery": Trickery, especially by lawyers and politicians!

(3) Refrain from abusive or obstreperous conduct, belligerence, or theatrics

Duty to expedite cases

CA
L must not delay cases to harass an adversary, or for your own personal gain or convenience.

ABA
L has an affirmative duty to expedite cases

Duty not to assist in the unauthorized practice of law

A "lawyer" must not engage in the unauthorized - or unlicensed - practice of law to safeguard the public from incompetence.

NOTE:
Practice in a state while suspended or in which you are not admitted is a violation unless allowed by law, a "pro hac vice" order by the local court, or under limited exceptions.

Out-of-state lawyers allowed to practice if...

CA:
(1) Registered legal services attorneys; OR
(2) Registered in-house counsel for an institution (no individual representation or court appearances); OR
(3) Litigating and Non-litigating attorneys practicing temporarily in the state.
(*) register with the CA Bar, pay dues, satisfy CLE requirements, and be subject to CA ethics rules

ABA:
(1) temporary practice by an out-of-state lawyer in good standing if
(i) the lawyer associates with an locally admitted lawyer who actively participates in the matter;
(ii) the services relate to ADR; or
(iii) the matter arises out of matters reasonably related to the lawyer's practice in a state where she is admitted and are not services where the forum requires a pro hac vice appearance.

Duty to report misconduct

ABA
-L require a lawyer to report to "the appropriate professional authority" any other lawyer or judge's violation of the Rules in any legal or non-legal context if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge.

CA
-Does not require the reporting of others.
-Self reporting required
-L can be disciplined for merely knowing about a fellow firm member's disciplinary violation but doing nothing to prevent it.

Duties of subordinates

Will a subordinate attorney be responsible for following superior attorney's orders?

(1) YES if it is a clear violation: You are subject to discipline

(2) NO if it is a debatable problem: The partner is solely responsible

(3) Supervising partner responsible if ratified the action or knew of the conduct and failed to take action

(4) Managing partners must also make reasonable efforts to ensure that everyone's conduct in a firm comports with the professional obligations of a lawyer, including non-lawyer assistance

How to begin an essay...

In interactions with clients, an attorney owes a client four overarching duties: the duty of
confidentiality, the duty of loyalty, the duty of maintaining financial integrity, and the duty
of competence. In the practice of law, a lawyer also owes a duty of decorum and fairness to the profession. With these general principles in mind, each action will be analyzed individually.