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in death (CA* requires you first make a good faith effort to persuade client not to
commit crime AND inform client of your decision to reveal his plan/ABA does not require a crime) (3) Crime of fraud or financial [CA** does not recognize this exception] (4) DEFENDING YOURSELF (5) REQUIRED BY LAW OR COURT)
---------------------------------------------------------------LOYALTY
RULE:
[If interest limits or is directly adverse to loyal representation, you have a potential or an actual conflict of interest; IF NO ACTUAL CONFLICT: then it is OK as long as you reasonably belief you can effectively represent, inform, get consent confirmed in writing; IF ACTUAL CONFLICT: refuse, or advise to seek separate counsel, or withdraw]
IMPUTED DISQUALIFICATION: [lawyer and all members of his firm are treated as a unit for purposes of conflicts; CA** follows rules for IDQ but no ethics discipline for a lawyer for imputed conflicts; EXCEPTIONS: Conflicts arising from previous government service or purely personal relationships may be OK with an ETHICS WALL] CONFLICTS BETWEEN LAWYER & CLIENT:
PUBLICATION RIGHTS CONTRACTS (during representation): [CA** -discouraged but allowed if judge feels client understands and consent; ABA- No] BUSINESS TRANSACTIONS OR ADVERSE INTERESTS: [May enter into business with a client or obtain an interest adverse to hers only if (1) terms are fair and disclosed in writing (2) client has opportunity to consult outside counsel AND (3) written consent from client; Stock as payment is OK; BOD discouraged] LOANS & ADVANCES TO CLIENTS: [CA**- not permitted to get business, but for any reason once client with written IOU; ABA- not permitted but for litigation expenses when representing indigent AND advance of litigation expenses in contingent fee cases] LIMITING LIABILITY: [Only if client is independently represented by another attorney in making agreement] USE OF CLIENT INFO TO HER DISADVANTAGE: [Violates loyalty and confidentiality duties] GIFTS TO LAWYER OR LAWYER’S FAMILY: [Not allowed unless related] CLOSE RELATIONSHIP WITH OPPOSING COUNSEL: [Need informed consent; No IDQ; CA** includes shackmates] TRIAL COUNSEL AS A NECESSARY WITNESS: [CA**- prohibits unless client consent; ABA- more strict, only if no prejudice to client AND (1) testimony is uncontested or regarding value of services rendered OR (2) withdrawal would impose substantial hardship]
CONFLICTS BETWEEN CLIENTS:
OPPOSITE SIDES OF THE SAME MATTER: [Actual conflict is never proper; IDQ applies] OPPOSING PRESENT CLIENT’S INTERESTS: [CA** prohibits but have insurance exception for joint client is insurance company whose only interest is as an indemnity provider; ABA does not prohibit, but it is rarely reasonable] TWO CLIENTS WITH INCONSISTENT POSITIONS: [OK with informed written consent BUT if either are disadvantaged, you must withdraw and advise to seek separate counsel] MULTIPLE CLIENTS IN THE SAME MATTER: [OK with informed written consent BUT if actual conflict arises, must withdraw and advise separate counsel] NEW CLIENTS IN MATTERS RELATED TO FORMER CLIENTS: [If you would be using info from former client, need former client’s consent, otherwise breach confidentiality and loyalty; IDQ applies] FORMER GOVERNMENT LAWYER NOW IN PRIVATE PRACTICE: [ABA- if you worked personally or substantially on a matter and now want to work privately on same matter, you need written consent; No IDQ if ethical/financial wall and inform; CA** -explicitly bars prosecutors from working as D in same case]
CONFLICTS DUE TO 3RD PARTY INTERFERENCE:
GENERAL RULE: [Sole duty of loyalty is to your client, not to any 3rd party] COMPENSATION FROM 3RD PARTY: [Only with informed client consent] ORGANIZATIONAL CLIENT: [Duty owed to organization not officer or director]
SARBANES-OXLEY: [In-House Counsel must report within, report up, and may report out; This preempts CA** permissive internal reporting and ban on external reporting]
---------------------------------------------------------------FIDUCIARY
ATTORNEY’S FEES
NON-CONTINGENT FEE: [Agreements should include (1) how fee calculated, (2) services covered, (3) lawyer and client duties, (4) PLUS CA** requires to be in writing unless under $1000 OR Corporate client OR Routine services for regular client OR emergency]
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CONTINGENT FEE: [Agreements should include (1) signed writing, (2) lawyer’s %, (3) expenses deducted from recovery, (4) when expenses deducted (before/after lawyer’s %), (5) PLUS CA** requires agreement state how work not covered by contingent fee will be paid AND that lawyer’s fees are negotiable, not a standard %] [ABA- no contingent fees in domestic cases or criminal cases; CA**alright in divorce cases as long as it does not encourage the breakup of a salvageable marriage] [if lawyer terminated early, still recovers work done in proportion; CA** also allows liens to guarantee collection of award to be written into agreements unless hourly fee contract] FEES TOO HIGH: [CA** standard= must not be unconscionably high; ABA standard= must be reasonable based on circumstances] FEE DISPUTE: [CA**- every lawyer required to submit to arbitration; ABA- encourages arbitration] FEE SPLITTING WITH OTHER LAWYERS: [OK as long as total fee is ethical and client is informed] REFERRAL FEES: [CA**- OK if fees are reasonable and client consents; ABA- not allowed because division must be proportional] PARTNERSHIP WITH NON-LAWYERS IN PROVIDING LEGAL SERVICES: [Prohibited; however, allowed to have a PROFESSIONAL REFERRAL ARRANGEMENT provided it is not exclusive and inform client; also lawyer’s allowed to provide “LAW RELATED SERVICES” but ethics still apply unless provided by separate entity controlled by lawyer (lawyer has to let client know that A/C relationship does not apply)]
CLIENT TRUST ACCOUNTS
DUTY TO SAFEGUARD CLIENT’S PROPERTY: [Label and safely store} DUTY TO NOT BORROW OR COMMINGLE FUNDS DUTY TO HOLD CLIENT FUNDS IN AN INTEREST BEARING TRUST ACCOUNT: [Client gets interest; POOLED CLIENT TRUST ACCOUNTS allowed for smaller amounts for shorter periods of time and interest goes to state bar; DISPUTED CLAIMS monies must be held] DUTY TO KEEP RECORDS FOR CLIENT: [Notify client of $ received and promptly pay; CA**- keep records for 5 years]
---------------------------------------------------------------COMPETENCE
RULE: [Competence means using legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation; Don’t
take a case if you don’t know the relevant law UNLESS you can put in the time to learn it without undue expense or delay to client OR you associate with a lawyer competent in the area]
MALPRACTICE: [Civil action brought by P for $ damages; P usually must show a breach of DUTY OF DUE CARE which is the skill, care, and judgment that a reasonably prudent general practitioner in the region have used in the circumstances]
---------------------------------------------------------------DILIGENCE
RULE: [You have a duty to diligently, promptly, and zealously pursue your case to completion]
---------------------------------------------------------------COMMUNICATE
emails]
RULE: [You have a duty to keep your client informed about the case, including settlement offers and returned client phone calls and client
---------------------------------------------------------------WITHDRAWAL
3 WAYS: [(1) Client fires you, (2) Mandatory withdrawal where continuing would violate a law or ethical rule, (3) Permissive withdrawal for good cause that will not cause undue delay or disruption (recognized causes include client’s failure to pay or client’s acting illegally; ABA also recognizes the general financial burden of the lawyer and past instances when client has used your services to commit fraud)] PROCEDURE: [Provide timely notice to client, promptly return unspent fees/expense advances AND all material papers; CA**- forbids holding clients materials for money; must bring separate action]
---------------------------------------------------------------REPRESENTATION
strategy]
SCOPE: [Client makes substantive decisions (decision to testify/accepting pleas) AND Lawyer makes decisions on procedure and legal ACCEPTING CLIENTS: [Lawyer free to accept or reject anyone; CA** encourages PRO BONO work; ABA urges 50 hours PRO BONO; Required to reject if it will violate a law or ethical rule]
---------------------------------------------------------------TO BE SENSIBLE & REASONABLE
also allows spouses and even new relations, with caution]
CONSENSUAL SEX WITH CLIENT: [ABA prohibits UNLESS you had a preexisting sexual relationship; CA**- in addition, CA
----------------------------------------------------------------------DUTIES OWED TO OTHERS
(“…Courts Feel Differently”)
CANDOR TO THE PUBLIC & DIGNITY OF THE PROFESSION
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ADVERTISING:
REQUIREMENTS: [(1)must not be false or misleading; (2) must be labeled; (3) must identify one attorney responsible for content; (4) must keep ad records for 2 years; (5) can mention legal specialization only if identify source; (6) must not harass although targeted mail alright as long as meet guidelines] CA PRESUMPTION: [CA**- presumes improper ad if it contains guarantees, warranties, or predictions UNLESS there is a direct disclaimer]
SOLICITATION:
REQUIREMENTS: [(1)must not seek pecuniary gain by initiating live or telephone contact with prospective client; (2) runners and agents cannot do anything lawyer can’t do] CA: [CA** reads “live or telephone” very narrowly and would permit real-time electronic contact, such as chat rooms; however, ABA does not; CA** presumes these communications are improper: (1) made at scene of accident or (2) on way to hospital, or (3) made to clients known to not be in physical or mental states of reasonable judgment]
---------------------------------------------------------------CANDOR TO THE COURT & FAIRNESS TO ADVERSARY
DUTY TO PRESENT FACTS & EVIDENCE TRUTHFULLY: [Refuse to make a false statement of material fact or offer known false evidence; affirmative duty to correct false statement of fact or law; CIVIL: if you know client will lie on stand, do not call them; CRIMINAL: if you know client will lie on stand, counsel client to tell truth or exercise 5th amendment right, if that fails, then permissive withdrawal. If that fails, in CA**, go for a narrative testimony, and ABA: reveal to judge] DUTY TO PRODUCE EVIDENCE:
[Must not suppress any evidence that you or your client has legal obligation to reveal; must not obstruct access to or tamper with fruits or instrumentalities of crime; Physical evidence not insulated by A/C privilege; If you discover evidence but do not tamper, no duty to disclose; BUT affirmative duty to deliver any contraband in possession to authorities; may be compelled to testify about evidence original location/condition but not source of tip; prior to turning over, lawyer may retain evidence for reasonable time for preparing case] [Obligation to be candid about the law, cite adverse controlling authority on
DUTY TO STATE THE LAW TRUTHFULLY:
point; do not present frivolous claims or defenses]
DUTY TO UPHOLD THE LAW:
withdrawal is permissive]
[if continued representation would assist in crime, must withdraw (if non-assistance, then
---------------------------------------------------------------DUTY TO PRESERVE DIGINITY OF THE COURT: DUTY TO EXPEDITE CASES:
[No improper influence or trickery with jurors]
PRESERVE THE DIGNITY OF THE COURT AND OTHER RELATED DUTIES
DUTY TO PRESERVE IMPARTIALITY AND DECORUM OF TRIBUNAL: [Refrain from abuse and theatrics]
[CA**- must not delay; ABA- duty to expedite] [Must not obstruct justice]
DUTY TO FOLLOW VALID PROCEDURAL RULES OR COURT ORDERS: DUTY TO PROFESSION AND PUBLIC:
[Must not engage in unauthorized practice of law]
DUTY TO REFRAIN FROM THE UNAUTHORIZED PRACTICE OF LAW: [Practicing while suspended OR in a state without a license (UNLESS (1) allowed by law (2) pro hac vice, OR (3) under limited exceptions- CA** has exceptions for registered legal service attorneys, registered in-house counsel, temporarily practicing within state); Must register with bar, pay dues, continuing education, and follow ethical rules] DUTY TO REPORT ETHICAL VIOLATIONS:
[CA**- self reporting; ABA- whistle blow]
---------------------------------------------------------------FAIRNESS TO OTHERS
COMMUNICATION WITH ADVERSARIES AND 3RD PARTIES: [Must not lie and mislead true interests; Must
not violate a legal right of another to obtain evidence, delay, burden, or embarass]
COMMUNICATION WITH PARTY REPRESENTED BY COUNSEL: [Must get consent (employee’s represented
by corporate counsel if matter about corporation)]
DEALING WITH THE PRESS: [Avoid statements with substantial likelihood of materially prejudicing case; EXCEPT when required to protect client from undue prejudice from recent publicity not created by you] SPECIAL DUTIES OF PROSECUTORS: [Basic duty to always seek justice; Must have probable cause; must protect accused’s rights; must disclose exculpatory evidence; must not make comments in press that heighten public condemnation of accused]
---------------------------------------------------------------DUTIES OF SUBORDINATES
ETHICAL VIOLATIONS:
[A managing partner must make efforts to ensure ethical actions of all employees/lawyers; If an ethical violation occurs where a supervisor is ratifying or directing the conduct of a subordinate: CLEAR VIOLATION= subordinate is subject to discipline; DEBATABLE VIOLATION= only partner is subject to discipline; INACTION: In CA**- a lawyer is subject to discipline if he failed to prevent fellow firm member’s violation]
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