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Barbri Professional Responsibility
Barbri PR definitions
Terms in this set (87)
What are the basic duties owed to one's client?
Clients Love Fierce Counsel
F: Financial Responsibility
. . . Other Reasonable Things
What are the basic duties owed to entities other than one's client?
Courts Feel Differently
C: Candor / Truthfulness
D: Dignity / Decorum
. . . Other Reasonable Things
What does the Duty of Confidentiality to one's Client Require?
Do NOT Reveal ANYTHING Related to the Representation WITHOUT Consent, Regardless of Whether the Client Requested it be Confidential or Whether its revelation might harm or embarrass
Can the Duty of Confidentiality attach before the lawyer-client relationship is formed?
YES. For example, at a preliminary meeting.
If a party imparted confidences to a lawyer representing another party in a dispute for the purposes of retaining counsel, can the lawyer be disqualified?
Possibly. The Party seeking to Disqualify bears the burden of proving confidences were actually imparted.
When does the Duty of Confidentiality conclude?
Never. It continues indefinitely, even after representation or death.
Can a lawyer disclaim the Duty of Confidentiality? E.g., on an intake form?
Only if it is in sufficiently plain terms.
What is the distinction between the Duty of Confidentiality and the Attorney-Client Privilege?
A-C Privilege is a narrower evidentiary rule. Confidentiality applies regardless of the source of the info, and prohibits disclosures that could lead to discovery of info related to the representation.
What are the Major Exceptions to the Duty of Confidentiality?
1. Consent, after consultation
2. Defending oneself (i.e. in malpractice)
3. Death or Substantial Bodily Harm
4. Fraud or Financial Crimes (NOT CAL)
What does the Exception to Confidentiality Re: Death or Substantial Bodily Harm allow?
ABA: A lawyer MAY reveal what is necessary to prevent an act that the lawyer reasonably believes disclosure is necessary to prevent a crime likely to result in reasonably certain Death or Substantial Bodily Harm.
CAL: The lawyer must first, if reasonable under the circumstances:
1. make a good faith effort to dissuade the client from committing the act AND
2. inform the client of the decision to reveal confidences
What does the Exception to Confidentiality re: Fraud or Financial Crimes allow?
ABA: If a client used the lawyer's services to commit the crime AND the disclosure would prevent or mitigate substantial financial loss, the lawyer MAY disclose confidences.
CAL: NO Financial Exceptions
What is there a conflict with Duty of Loyalty to one's Client Require?
If the lawyer's interest to a party other than the client (himself, another client, a 3rd party) "Materially Limits or is Adverse" to Loyal Representation, there exists a conflict of interest.
When may a lawyer continue representation of a client when there exists a conflict of interest?
The Lawyer Must:
1. Reasonably believe he can represent everyone effectively despite the potential or actual conflict AND
2. Inform each affected client AND
3. Get consent, confirmed in writing
NOTE: If Confidentiality precludes necessary disclosure for informed consent, then consent may not be possible
What is Imputed Disqualification?
ABA: All members of a law firm share conflicts.
CAL: Same rule, BUT No Discipline for Imputed Conflicts
Does Imputed Disqualification applied for former government employees?
Yes, BUT an "Ethical Wall" is sufficient to shield other lawyers in the firm from the conflict.
Must one know of the conflict?
NO. Lawyers are responsible for conflicts they are ignorant of.
EXCEPT: Short term legal services for a court, agency or non-profit program. Then only responsible if the lawyer KNOWS.
What are remedies for conflicts of interest among clients?
1. Refuse a case
2. advise multiple clients to get separate counsel
(or informed consent in writing if reasonably believe can represent all?)
When may a lawyer enter into business with a client or obtain an adverse interest with a client?
IF: First Discuss Over Coffee
F: Fair terms to the client
D: fully Disclosed in writing
O: the client has an Opportunity to consult an outside attorney
C: written Consent
May a lawyer sit on a client's Board of Directors?
Private Sector: Yes, but Strongly Discouraged. Likely to compromise duties of Loyalty and Confidentiality
Can a lawyer limit a client's right to report the lawyer for ethical or other professional violations?
Can a lawyer limit malpractice liability?
ONLY IF the client is independently represented in making the agreement.
May a lawyer accept Publication Rights to a client's story?
ABA: NOT UNTIL representation ends
CAL: Maybe IF the judge is satisfied that the client clearly understands and consents
May a lawyer offer loans or advances to clients?
ABA: No financial assistance except costs and litigation expenses when representing the indigent and the advance of litigation expenses in Contingent Fee cases
CAL: Allows loans in all matters for any purpose after the lawyer is hired IF there is a written IOU
May a lawyer solicit a substantial gift from a client or draft a legal instrument providing a substantial gift to the lawyer or his relative?
May a lawyer represent a client when the adverse party is a relative?
ABA: Not Without Consent
CAL: Not Without Consent. AND extends the rule to "intimates".
NOTE: not imputed to other members of a firm
May trial counsel appear as a witness?
ABA: No UNLESS won't prejudice the client AND testimony is uncontested regarding the nature and value of services rendered OR distinctive value to the case means withdrawal would impose substantial hardship on the client
CAL: No UNLESS written consent
May an attorney represent clients with conflicts?
In General, an attorney may represent clients with POTENTIAL conflicts with proper consent but Rarely if in ACTUAL conflict
May an attorney represent clients on the opposite side of the same matter?
May an attorney represent an opposing client on an unrelated matter?
UNLESS: reasonable consent of both
CAL: EXCEPTION: representing a policyholder and his insurance company as joint clients where the latter is only an indemnity provider
Can an attorney represent 2 clients with inconsistent positions in different cases?
Maybe, with the consent of both.
BUT: if either would be disadvantaged, withdraw
Can an attorney represent multiple clients in the same matter?
Potential conflicts require reasonable consent.
Actual conflicts require withdrawal.
BUT: If have confidential info from client A and not B, might be able to stick with A.
NOTE: in criminal cases, this can invoke the 6A
Can an attorney represent a new client in matters related to a former client?
Not without the former client's consent.
BUT: Use of non-public, confidential info against a former client is unreasonable.
Do imputed conflicts stay with a firm after an attorney leaves?
NO, so long as no remaining lawyer has confidential, material info
Can a new firm screen out conflicts?
IF the new attorney is (1) timely and effectively screened, (2) receives no direct part of the fee, and the former client receives (3) notice and (4) periodic certifications of compliance
What is a former government attorney barred from?
ABA: bars a former government lawyer who worked personally and substantially on a matter without written consent from government employer BUT: no imputed disqualification IF 1. screened off, 2. no share of the fee, AND 3. government employer informed
CAL: prosecutors may not later work for the defendants on those cases
BUT: not include regulations
May an attorney be compensated for services to a client from a 3rd party?
ONLY with informed consent
When the organization is the client, to which officer does the attorney's duty of loyalty run?
NONE. The duty is to the organization.
When corporate officers act against the lawful interests of the corporation, what are the lawyer's duties?
ABA: to prevent fraud, perjury, or substantial injury to the organization or investors, must "report up" and permits limited "reporting out"
What must an attorney disclose about his fees in non-contingent cases?
ABA: agreements must include: how the fee is calculated, what services are covered, and the lawyer & client's duties
CAL: agreements must be in writing, UNLESS: fee <$1000, with a corporate client, for routine services of a regular client, OR it's an emergency or impractical
What must an attorney disclose about his fees in contingent fee cases?
ABA & CAL:
1. Percent of the recovery
2. expenses to be deducted from recovery
3. whether Percent taken before or after expenses
4. How work not covered by the contingency fee will be paid
5. that lawyers' fees are negotiable
When are contingent fees NOT permitted?
ABA: domestic relations or criminal cases
CAL: silent on criminal cases; divorces ok if "won't encourage the breakup of an otherwise salvageable marriage"
If a contingent fee attorney is fired, may he recover if the client ultimately prevails?
Yes, in proportion to the work he did
When are fees to high?
ABA: Fees must be reasonable, taking into account labor, novelty, difficulty, skill, time required, result obtained, etc.
CAL: not unconscionably high
NOTE: terms that are functionally a penalty or forfeiture are unenforceable
How are fee disputes resolved?
ABA: encourages arbitration
CAL: requires arbitration IF client requests it
With whom may lawyers share fees?
1. lawyers inside the attorney's law firm
2. lawyers outside the firm ONLY IF the fee is ethical AND informed, written client consent.
ABA: must be proportional to work done UNLESS jointly responsible for action
3. BUT NOT non-lawyers
EXCEPT: A. death benefits to lawyer's heir, B. salaries & pensions to firm employees, and C. sharing court-awarded fees with non-profits that employed / recommended case
Who may be partners, shareholders, officers, or directors of a law firm with practicing lawyers?
Can lawyers have reciprocal referrals with other lawyers?
Yes, IF they are not exclusive AND client is informed
What are the consequences for a lawyer for not carrying malpractice insurance?
ABA: allows administrative suspensions
CAL: written disclosure to any client needing 4+ hours of service
EXCEPT: government & in-house attorneys
What should an attorney do with client's money?
- Must be placed in a client trust account.
- If small amount held briefly, can be kept in a pooled client trust account
- NO borrowing or commingling of funds
What duties attach to holding a client's money?
- keep good records
- render accounting
- notify him of moneys received on his behalf
- pay money due promptly
- CAL: keep records available for 5 years after final distribution
If the attorney or a 3rd party has a dispute over a client's funds in the attorney's custody, what must the lawyer do?
Must withhold the disputed portion in the client trust account until resolution of the claim
What will satisfy the Duty of Competence? How does that differ from Malpractice?
- Competence: Using legal knowledge, skill, thoroughness, and prepare as reasonably necessary for the representation
- Malpractice: Breach of Duty of Due Care - the skill, care, and judgment a reasonably prudent practitioner in the region would have used under the circumstances
What are the consequences for NOT rendering Competent services to client?
1. Discipline by the Bar
2. Disqualification as counsel in a litigated matter
3. Civil Malpractice Liability
What is Required by the Duty of Diligence?
Duty to diligently, promptly, and zealously pursue the case
What is Required by the Duty to Communicate?
Duty to keep client informed about the case, including settlement offers & answering messages
When may/should/must an attorney (not) accept a case?
- Generally, free to accept or reject cases.
- Attorney should do 50+ hours of pro bono per year
- But must reject a case if taking the case would involve violating a duty or ethical rule
How is decision making divided between lawyer and client?
- Client makes decisions about substantive rights (e.g., whether to testify in a criminal case, accepting a settlement)
- Lawyer makes decisions on procedure or legal strategy (e.g., choice of motions, what discovery to seek)
May a lawyer limit the scope of representation if there is a disagreement on decision making in a case?
Yes, with client consent.
BUT: scope of representation does NOT include assisting a client with illegal conduct or advising client on how to act illegally and get away with it
When may / must an attorney withdraw?
- MUST withdraw: IF continuing would violate a law or ethical rule
- MAY withdraw: IF convince the court of good cause AND no undue delay or disruption (incl. actions the lawyer finds illegal, repugnant, or imprudent)
ABA: if unreasonable financial burden because client fails substantially to fulfill obligation
CAL: more liberally allows withdrawal if client simply breaches as to fees or expenses
What are the procedures for withdrawal?
1. timely notice to client
2. promptly return: unspent fees or expense advances, property and materials of client, and even work product needed to pursue case
CAL: forbids withholding client's materials for money
May an attorney have a sexual relationship with a client?
ABA: if it predated the attorney-client relationship
CAL: excuses preexisting relationships and new relations, with cautions
May the state regulate attorney commercial advertising and solicitation?
YES, IF: (1A)
1. Gov't asserts substantial interest
2. Regulation directly advances that interest
3. Narrowly tailored
What are limits on attorney advertisements?
1. Do NOT mislead or omit material information (potentially even puffery)
2. Do NOT raise unjustified expectations or make unverifiable comparisons
CAL: ANY guarantees or warranties or predictions of a result are presumed improper - even testimonials or endorsements without disclaimers
3. Cannot claim to be a specialist UNLESS certified
4. No harassment or unwanted solicitations. Rules on targeted mail.
5. Every ad must be labeled: as an ad, as a dramatization, who is responsible
What are limits on attorney solicitation?
- attorney cannot seek client by initiating live or telephone contact with a prospective client
ABA: includes online chat rooms
CAL: excludes online chat rooms
CAL: presumes communications at crime scene or en route to medical facilities is improper, as are clients not in the physical or mental state to exercise reasonable judgment.
NOTE: limits apply to an attorney's agent
What does the Duty of Candor require before a tribunal?
1. Must refuse to make statement of material fact,
2. Must Not offer evidence the attorney knows is False,
3. Must correct false statement of fact or law previously made
What happens if a client wants to perjure herself?
Civil Case: do not call client to stand
Criminal: 5A and 6A implicated. SO:
1st. Tell D to testify truthfully or not take the stand
2nd. Try to withdraw
CAL: allow D to testify in narrative fashion but do not further the deception
ABA: tell the judge
What happens if a client informs an attorney he previously perjured himself after the proceeding ended?
Take reasonable remedial measures, but duties end with proceedings.
May an attorney counsel a witness to testify falsely or be unavailable?
What if an attorney does not know but has a reasonable belief, testimony is false?
rules become permissive
What does the Duty to Produce Evidence Require?
- Must NOT suppress evidence the law requires to be produced, regardless of confidentiality
- Must NOT obstruct access to or tamper with fruits or instrumentalities of a crime (deliver to court)
BUT NOTE: draw line between physical evidence and confidential info
ALSO: Look but don't touch (no duty to produce)
What are a prosecutor's duty of disclosure?
special duty to timely disclose evidence favorable to D, without regard to impact on outcome or admissibility as under Brady
Are there additional duties in ex parte proceedings?
Yes, duty to reveal relevant information, overriding normal presumption not to reveal facts harmful to client's case
How does the Duty to Uphold the Law conflict with other duties?
MUST withdraw, if continued representation would involve assisting or committing a crime.
MAY withdraw if not assisting but believe client persists in criminal or fraudulent actions
What does the General Duty of Fairness Require?
Lawyer has a duty to behave honestly in all dealings, whether or not engaged in the practice of law. When there are no explicit rules, lawyer must act to promote public confidence in the integrity and efficiency of the legal system and profession.
What is required when are opposing counsel inadvertently sends documents?
IF the lawyer knows it was inadvertently sent, STOP reading, and NOTIFY opposing counsel.
Using the document will disqualify the lawyer.
What limits exist on communication with adversaries and 3rd parties?
NO lying, violating others' rights, or using means with no purpose but to delay, burden, or embarrass
May an attorney talk to an individual with representation?
ABA: not without consent of counsel (unless seeking 2nd opinion)
CAL: limits this to "parties"
May an attorney to talk to a corporation's employee of an opposing party?
ABA: not without consent of corporate counsel
CAL: if communication might bind or be imputed to the organization, then not without consent of corporate counsel
May an attorney speak with the press?
Yes, BUT must avoid out of court statements the attorney should reasonably know to have a substantial likelihood of prejudicing the case.
EXCEPT: statements required to protect client from substantial undue prejudice from recent publicity NOT self-initiated
What is the Special Duty of Prosecutors?
Seek justice, not victory. Must have Probable Cause.
What does the Duty to Preserve the Impartiality and Decorum of the Tribunal Require?
1. Do not talk to any prospective or empanelled juror. Afterwards, may interview with consent. CAL: must inform of right to refuse consent.
2. No referring to inadmissible material or matters unsupported by evidence or asserting personal knowledge.
3. Refrain from abusive conduct, belligerence, or theatrics
What does the Duty to Expedite Cases Require?
1. ABA: affirmative duty to expedite
1. CAL: must not delay cases to harass or for personal gain / convenience
2. follow valid procedures / orders UNLESS making a good faith challenge to their validity
When is a software program or a person engaging in unauthorized practice of law?
if it is beyond the capacities and knowledge of laypersons
What is required to practice law in a state in which an attorney is not admitted?
1. Pro Hac Vice order
2. temporary practice if A. associates with a locally admitted lawyer, OR B. related to ADR OR C. arises out of a matter reasonably related in a state where she is admitted
CAL: must register, etc.
What are attorneys' reporting requirements of misconduct?
ABA: must report any other lawyer's or judge's violation of the Rules if it raises a substantial question as to that person's honesty, trustworthiness or fitness
CAL: self-reporting requirement but no reporting requirement on others BUT will be disciplined for doing NOTHING to prevent a fellow firm member's violation
When are subordinates ethically responsible?
1. Clear Violations -> subject to discipline
2. Debatable -> partner solely responsible
When is a supervising partner responsible for subordinates?
- If he ratified or knew of the conduct and failed to take action, his violation
- Managing partners must make reasonable efforts to ensure firm comports with professional obligations (incl. non-lawyers)
THIS SET IS OFTEN IN FOLDERS WITH...
California Bar Exam: Professional Responsibility
California Evidence Distinctions: CA Bar
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