BarBri Legal Ethics Outline by niusheng11

VIEWS: 260 PAGES: 24

									                                  Legal Ethics Outline

I.    Attorney-Client Privilege
      a. Prohibits a court from compelling the revelation of confidential communications
          between an attorney and a client
               i. Only the client, as the holder of the privilege, may waive the privilege
              ii. When the client is a corporation, the privilege extends to communications
                  between the lawyer and a high-ranking corporate official
                      1. This means that the entity can waive the privilege as to
                          confidential communications made between the lawyer and the
                          entity’s officers/directors requiring the lawyer to testify about these
                          confidential communications, unless the lawyer also represents the
                          officer/director in an individual capacity and the confidential
                          communications were made with the officer/director in an
                          individual capacity (because then the individual holds the
      b. Exceptions to the Privilege
               i. Under the ABA Rules and California rules, the privilege does not apply if
                  the client seeks the attorney’s services to enable or aid anyone to commit
                  any future crime or fraud (duty of confidentiality still applies here though)
              ii. Also, in California, the privilege is inapplicable if the attorney reasonably
                  believes that the disclosure of confidence is necessary to prevent the client
                  from committing a future crime that is likely to result in substantial bodily
                  harm or death
II.   Duty of Confidentiality (owed to client)
      a. Prohibits the attorney from revealing any confidential information relating to the
          representation of the client (e.g., statements made by the client; observations
          made by the attorney regarding the client; statements from third parties relating to
          the client)
               i. Exceptions:
                      1. Consent of the client after consultation
                               a. Attorney also has implied consent to reveal what is
                                  necessary to render his legal services
                                       i. Example: Your client has synthesized a new steroid
                                          and has hired you to get a patent on the drug. You
                                          may reveal the client’s invention to the Patent
                                          Office because it is necessary to render your legal
                      2. Crimes
                               a. ABA Rule
                                       i. Attorney may reveal confidential information about
                                          a client if he reasonably believes disclosure is
                                          necessary to prevent a future crime involving
                                          substantial bodily harm or death
                               b. California
                                         i. There is no clear ethical exception to disclose
                                            confidential information, even for imminent
                                            substantial bodily injury or death, but the California
                                            evidence code overrides the attorney-client
                                            privilege to prevent substantial bodily harm
                       3. Defending Yourself
                                a. Attorney may disclose confidential information about a
                                   client if necessary to establish a personal claim or defense
                                         i. Examples:
                                                1. The client sues attorney for malpractice;
                                                2. The client brings disciplinary actions against
                                                    the attorney; and/or
                                                3. The client refuses to pay the attorney,
                                                    forcing him to sue the client for fees
                       4. Attorney may disclose confidential information if compelled by
                           law, other controlling ethical duties, or a final court order
       b. Scope of the Duty
                i. Source of the information does not matter
               ii. “Anything related to the representation of a client” is construed very
                   broadly and can include business or political consequences (isn’t limited
                   to information directly related to legal services)
              iii. Ethical standard is broader than the evidentiary attorney-client privilege
                   and can apply whether or not the information is privileged
       c. Duty applies regardless of whether client asks it to remain confidential or whether
          its revelation might harm or embarrass the client.
       d. Duty continues indefinitely, even after representation has ended
III.   Duty of Loyalty (owed to client)
       a. If a concurrent interest of the attorney, another client, or a third party materially
          limits or is directly adverse to loyal representation, the attorney has a potential or
          an actual conflict of interest
                i. Attorney may not take on the representation, unless:
                       1. He reasonably believes he can represent everyone effectively;
                       2. He informs each affected client;
                                a. If the duty of confidentiality prevents full disclosure, no
                                   consent is possible
                       3. Client consents in writing; and
                       4. The consent is reasonable
                                a. If a reasonable lawyer would not advise a client to consent,
                                   then the consent is invalid
               ii. If conflicts emerge only after representation begins, the attorney must
                   disclose potential and actual conflicts as they arise, must get further
                   consent, and must withdraw if consent is not reasonable
       b. Imputed Disqualification
                i. Attorney and all the members of his current firm are treated as a unit for
                   the purpose of conflicts (this includes any group of lawyers that work
          together closely or share responsibilities) (e.g., private firms, government
          agency offices, corporate law offices)
              1. Exceptions:
                      a. When the conflict arises from previous government
                      b. When the conflict of the lawyer arises from a purely
                          personal interest or relationship that would not affect the
                          ability of other firm members to represent the client
                                i. In these cases, an “ethical wall” may make
                                   representation reasonable by blocking off any
                                   contact on the matter between the lawyer with the
                                   conflict and other lawyers in the firm
      ii. Imputed disqualification only applies to an attorney’s former firm (that
          former firm cannot take on a matter) if:
              1. The matters are substantially related or the same; and
              2. Any remaining lawyer has confidential material information
c. Remedies
       i. Refuse to take the case
      ii. Advise multiple clients to get separate counsel
     iii. Withdraw
d. Most Common Conflicts
       i. Conflicts Between Lawyer’s Interest and Client’s Interest
              1. A lawyer must not have a proprietary (economic) interest in the
                 cause of action or subject matter of the litigation
                      a. Exception:
                                i. An attorney may get a lien on property to secure
                                   payment of fees; and
                               ii. An attorney may work on a contingent fee basis if
                                   permitted for the type of case involved (e.g.,
                                   contracting for a percentage of the damages
                                   awarded or settlement received)
              2. A lawyer should not become interested in the subject matter of the
                 litigation (e.g., proprietary interests)
                      a. Exceptions:
                                i. An attorney’s lien on property to secure payment of
                               ii. An attorney can work on a contingent fee basis
              3. Business Transactions or Adverse Interests:
                      a. Attorney may enter into business with client or obtain an
                          interest adverse to the client only if:
                                i. Terms are fair to the client;
                               ii. Fully disclosed in an understandable writing;
                             iii. The client has an opportunity to consult an outside
                                   lawyer; and
                              iv. The client provides written consent
      b. An attorney representing a company can agree to accept
          “payment” in the form of shares of stock equal to the value
          of the legal services performed if:
                i. The services have been valued reasonably;
               ii. The transaction is documented;
             iii. It is fair and reasonable under the circumstances
                   known to the lawyer at the time the interest was
                   acquired; and
              iv. The interest doesn’t distort the lawyer’s advice to
                   the company
      c. Attorney Serving as Director of a Corporation
                i. There is no automatic prohibition against an
                   attorney serving as a director of a corporate client,
                   but it is strongly discouraged (likely to compromise
                   attorney-client privilege and confidentiality, as well
                   as create conflicts of interest)
               ii. An attorney may serve as a director, officer, or
                   member of a legal services organization that is not
                   the attorney’s employer, as long as the attorney
                   doesn’t knowingly participate in a decision or
                   action of the organization that is adverse to the
                   attorney’s clients
4. Publication Rights Contracts
      a. Under ABA Rule
                i. Attorney may not enter into a contract for the rights
                   to tell the story of a client until representation has
      b. California Rule
                i. Discourages publication rights contracts before the
                   end of the proceedings, but tolerates them if the
                   judge is satisfied that the client clearly understands
                   and consents
5. Loans and Advances to the Client
      a. ABA Code and Model Rules
                i. A lawyer is prohibited from rendering financial
                   assistance to the client in the context of
                   contemplated or pending litigation
                        1. Exceptions:
                                 a. Attorney may advance court costs
                                    and litigation expenses (and
                                    repayment can be contingent on the
                                    outcome); and
                                 b. Attorney representing an indigent
                                    client can pay court costs and
                                    expenses of litigation on behalf of
                                    the client
        b. California Rule
                 i. Attorney cannot promise to pay a client’s debts to
                    gain his business (cannot “buy” clients)
                ii. After the lawyer is hired, he may lend the client
                    money for any purpose as long as the client gives
                    him a written promise to repay the loan
6. Limiting Liability for Malpractice
        a. Attorney cannot prospectively limit his malpractice liability
           when he enters into a relationship with his client (or
           condition returning a client’s case file upon termination or
           withdrawal on the client signing a liability release form)
        b. An attorney can only settle a malpractice claim after giving
           written advice to the client to consult an outside lawyer first
7. Use of Information
        a. Use or communication of information relating to the
           representation of a client to her disadvantage ordinarily
           violates the duties of both loyalty and confidentiality
8. Gifts to the Lawyer (or Lawyer’s Family)
        a. ABA Rule:
                 i. Attorney may not solicit a substantial gift from a
                ii. A legal instrument that gives an attorney (or his
                    family) a substantial gift cannot be drafted by the
                    attorney, unless the client is the attorney’s relative
               iii. Attorney may accept a gift from a client, though, as
                    long as it meets general standards of fairness
        b. California only prohibits soliciting a gift, not drafting the
           legal instrument
9. Close Relationships with Other Lawyers in the Same Matter
        a. ABA Rule:
                 i. Close relations with other lawyers in the same
                    matter can create potential conflicts
                        1. “Close relations”
                                a. Includes immediate family (i.e.,
                                    spouse, parent, child, or sibling)
        b. California extends this rule to any intimate relationship
           (e.g., your own lawyer or client, your roommate, etc.)
10. Trial Counsel as a Necessary Witness
        a. Attorney cannot serve as counsel and witness in the same
                 i. Exceptions:
                        1. If the lawyer’s appearance as a witness will
                            not prejudice the client; and the testimony is
                            uncontested, or regarding the nature and
                            value of services rendered
                        2. Additional ABA Exception
                                     a. If the attorney has distinctive value
                                         in the case, and withdrawal would
                                         impose substantial hardship on the
                               3. Additional California Exceptions:
                                     a. If the testimony is to be given to
                                         anyone but a jury; or
                                     b. If the client consents in writing
ii. Conflicts Among Clients
       1. Generally, attorney may represent two clients with potential
           conflicts with the reasonable consent of each client, but it is almost
           never proper if their interests are in actual conflict
       2. Opposite Sides of the Same Matter
               a. It is never reasonable to assert a claim by one client against
                   another client in the same case (if parties are in direct
                        i. Example: Attorney’s firm represents Texaco in
                           labor matters. When an employee of Texaco asks
                           attorney to represent him in a suit against Texaco
                           for cutting off his benefits, the attorney cannot take
                           the case (imputed disqualification) because the
                           parties are in direct conflict and it would be
       3. Opposing Present Client In a Simultaneously Pending Matter
               a. ABA Rule
                        i. If attorney (or his firm) represents a company in one
                           area (e.g., securities litigation), he probably may not
                           represent an opposing party, even if the case is in an
                           unrelated matter (e.g., labor dispute).
                                1. This is because even if the attorney secures
                                    the consent of each party, the consent will
                                    likely be found to be unreasonable
               b. California
                        i. Absolutely prohibits a lawyer from taking a case
                           against a client he is currently representing in
                           another matter, even if there is no substantial
                           relationship between the two cases
       4. Two Clients With Inconsistent Positions
               a. A lawyer may argue both for and against a certain cause or
                   law in two different cases, as long as he receives the
                   consent of both clients
                        i. Attorney must withdraw if either client would be
       5. Joint Representation of Multiple Clients in the Same Matter
               a. Criminal Matters
       i. Dual representation is never allowed if attorney is
          appointed counsel
      ii. Dual representation in all other situations is
          permissible as long as it doesn’t impede the 6th
          Amendment’s guarantee of effective assistance of
               1. A lawyer has provided ineffective assistance
                   of counsel (and was incompetent) if her
                   conduct falls measurably below the
                   performance ordinarily expected of lawyers
                   and her conduct affected the outcome of the
b. Requirements (civil matters and criminal cases)
       i. An attorney may represent two clients in civil
          litigation if their interests are only potentially in
          conflict, provided that the attorney:
               1. Reasonably believes he can represent all of
                   them effectively;
               2. Discloses potential conflicts and
                   disadvantages to each client;
               3. Gets written consent from each client
                        a. Consent can be inferred from the
                           terms of an insurance policy calling
                           for the insurer to retain counsel to
                           defend the insured against
                           malpractice actions; and
               4. Consent is reasonable
      ii. If a potential conflict becomes a present, actual
          conflict (e.g., insurer wants to settle, doctor wants a
          trial to prove his innocence; one defendant can plea
          bargain if he testifies against the other defendant),
          the attorney cannot continue to represent both
               1. The attorney should advise both parties
                   about the conflict, advise one or both of
                   them to get separate counsel, withdraw, or
                   continue to represent one party (e.g., the
                   party you have obtained confidential
                   information about), but withdraw from the
                   other client (e.g., that would be hurt by that
                   confidential information).
                        a. Also, once an actual conflict
                           becomes evident, the attorney should
                           refrain from sharing each party’s
                           confidential information with the
                           other party
               iii. Examples: Representing both the insured and the
                    insurance company (e.g., Insurance company hires
                    attorney to represent the company and a doctor in a
                    malpractice action), an employee and the company
                    as co-defendants in civil litigation, or both spouses
                    in a prenuptial agreement, divorce, or will.
               iv. NOTE: If a malpractice insurance policy gives the
                    insurer the right “to investigate and settle any
                    claims as it deems appropriate,” this creates a
                    potential conflict in itself because it places the
                    insurer in a superior bargaining position and
                    prejudices the doctor’s right to go to trial with fair
6. New Clients In Matters Related to Former Clients (or a New Client
   Sues a Former Client)
       a. An attorney owes a continuing duty to preserve information
           gained in confidence during a former representation of a
       b. If the attorney obtained any confidential information during
           his representation of the former client that is relevant to the
           new client’s case, the attorney may not take on the
           representation of the new client unless both parties consent
           (in California, written consent is required)
                 i. If the former client will not give consent, the
                    attorney must withdraw from representing the new
       c. The attorney may not take on the new client’s case if the
           matter is the same or substantially the same as the former
           client’s matter (ask if the representations overlap in
           function, scope, or information)
7. Former Government Lawyer, Law Clerk, Judge, or Arbitrator Now
   In Private Practice
       a. ABA Rule
                 i. If the attorney himself worked personally and
                    substantially on a matter while in government
                    practice (i.e., a specific dispute between specific
                    people over specific issues), the attorney cannot
                    work on that same matter later in private practice,
                    unless the government agency consents in writing
                         1. Regulations are not a “matter” (so you can
                             work on regulations in a government office
                             and then move to private practice and
                             become involved in litigation disputing the
                             meaning of those regulations)
                ii. Other members of the attorney’s firm may represent
                    a client in the same matter, if:
                                  1. The former government attorney is screened
                                  2. The former government attorney does not
                                      share in any part of the fee in the matter
                                           a. He can receive salary or partnership
                                              shares established by prior
                                              independent agreement, however;
                                  3. The government employer is notified
                b. California is silent on this (has not adopted ABA Rule)
iii. Conflicts Due to Third Party Interference
        1. Accepting Fees from a Third Party (someone other than the client)
                a. Attorney’s sole duty is to his client, not to any third party
                b. An attorney may only accept compensation for legal
                    services from a third party if:
                          i. The client consents after consultation;
                         ii. The third party does not interfere with the lawyer’s
                             independent judgment or the representation; and
                        iii. The arrangement does not compromise the client’s
                             confidential information
        2. Organizational Clients
                a. When a lawyer represents a corporation/entity, the lawyer
                    owes his duties to the entity and must act in the best interest
                    of the entity, not its officers or employers
                          i. In dealing with the organizations’ officers and
                             employees, the lawyer must explain the identity of
                             the client when the lawyer knows or should know
                             that the organization’s interests are adverse to those
                             of the officers/employees
                         ii. If the lawyer meets with an employee/officer of the
                             entity in his individual capacity and it is clear that
                             the individual is seeking legal advice, is meeting
                             with the lawyer in his capacity as an attorney, and
                             engages in confidential communications with the
                             attorney, the lawyer will have entered into an
                             attorney-client relationship with the individual
                             officer/employee too (and all confidentiality rules
                             apply to the officer or employee as well)
                                  1. This is permissible subject to
                                      loyalty/conflict of interest rules and
                                      disclosure/consent requirements
                b. If a lawyer for an entity knows that an officer or employee
                    is engaged in action, intends to act, or refuses to act in a
                    matter related to the representation that is a violation of a
                    legal obligation to the organization, or a violation of a law
                    that could be imputed to the organization, and is likely to
                                result in substantial injury to the entity, the lawyer must
                                proceed as is reasonably necessary in the best interests of
                                the entity
                                      i. Ask for reconsideration of the matter;
                                     ii. Advise that separate legal opinion be sought on the
                                    iii. Refer the matter to a higher authority within the
                                         entity, including, if warranted by the seriousness of
                                         the matter, the highest authority that can act on
                                         behalf of the organization
                                              1. When the organization’s highest authority
                                                  insists on action that is a clear violation of
                                                  law and is likely to result in substantial
                                                  injury to the organization, the lawyer may
                             c. If the attorney cannot proceed in the best interests of the
                                entity because he cannot reveal a client-officer’s or client-
                                employee’s confidential information to the entity, he must
                                withdraw from representing the entity
IV.   Attorney’s Fiduciary Duties Owed to the Client
      a. Attorney Fees
              i. Fee agreements are typically contractual between the attorney and the
                 client, and should reached early and clearly
             ii. Non-Contingent Fee Cases
                     1. ABA Rule
                             a. Fee agreements should include:
                                      i. How the fee is calculated;
                                     ii. What services are covered; and
                                    iii. The lawyer’s and client’s duties
                     2. California Rule
                             a. Fee agreements should include how the fee is calculated,
                                what services are covered, and the lawyer’s and client’s
                                duties, and also must be in writing, unless:
                                      i. The fee is under $1000;
                                     ii. It is with a corporate client;
                                    iii. It is for routine services for a regular client; or
                                    iv. It is an emergency or impractical
            iii. Contingency Fee Agreements
                     1. When They May Be Used
                             a. ABA Rule
                                      i. Contingency fee agreements may be used in every
                                         type of action, except for family law (divorce) and
                                         criminal matters
                             b. California
                                      i. California is silent on criminal matters (so they are
                                         probably ok)
                        ii. Contingency fee agreements are allowed for
                             divorces, provided the fee arrangement doesn’t
                             encourage divorce
       2. Requirements:
                a. Must be in a signed writing;
                b. Must contain:
                         i. How the fee is calculated (the attorney’s percent);
                        ii. How costs will be handled (what expenses are to be
                             deducted from the recovery and whether the
                             percentage is taken before or after expenses are
                c. California also requires them to contain:
                         i. How the client will be charged for other related
                             legal work; and
                        ii. A statement that the attorney’s fees are not set by
                             law (are negotiable)
iv. Amount of Fees
       1. ABA Rule
                a. Fees must be reasonable (taking into account labor,
                    novelty, difficulty, skill and timing required, result
                    obtained, lawyer’s experience, other demands on the
                    attorney, the fee arrangement, etc.)
                b. Arbitration should be used to resolve fee disputes if
       2. California Rule
                a. Fees must not be unconscionably high
                b. The court will not enforce a contract containing
                    unconscionably high fees
                c. Lawyer must agree to submit to arbitration if the client
       3. Charging an additional fee or percentage of the settlement/damages
           awarded in addition to an already contracted for, and owed, fee as
           a condition to continue performing legal services is
 v. Fee Splitting (sharing part of your recovery/settlement with someone else)
       1. A lawyer may split fees with other lawyers in his firm
       2. A lawyer may split fees with lawyers outside the firm if:
                a. The total fee amount meets ethical standards;
                b. There is written disclosure to the client; and
                c. The client consents
                d. ABA also requires that the division is proportional to the
                    actual work done by each attorney, unless each attorney is
                    jointly responsible for the action (California does not
                    require proportionality)
               3. Referral Fees (where the primary attorney pays a portion of his fee
                    to a second attorney who referred the client to him)
                        a. ABA rules do not allow referral fees
                        b. California allows referral fees as long as
                                 i. The client knows all of the terms and consents in
                                ii. The total fee is not unconscionable; and
                               iii. The total fee is not increased because of the referral
               4. A lawyer may not split fees with a non-lawyer
                        a. Exceptions:
                                 i. Death benefits for a lawyer’s services can be paid to
                                    the deceased lawyer’s firm or heirs for a reasonable
                                ii. Fees can be shared with non- lawyer employees via
                                    pension and compensation plans
                               iii. Lawyer may share court-awarded legal fees with a
                                    non-profit organization that employed, retained, or
                                    recommended the lawyer in the matter
      vi. Partnership with Non-Lawyers in Providing Legal Services
               1. A lawyer cannot enter into a partnership with a non- lawyer to
                    provide legal services (non- lawyers cannot be partners,
                    shareholders, or officers, and cannot control or direct a lawyer’s
                    professional judgment)
                        a. However, a lawyer can enter into a reciprocal referral
                            arrangement (not for fees) with another lawyer or non-
                            lawyer professional, provided that:
                                 i. It is not an exclusive arrangement; and
                                ii. The attorney explains the arrangement to the client
                                    at the time of the referral
b. Client Trust Accounts
        i. Attorney has a duty to safeguard his client’s property by labeling it and
           storing it in a safe place such as an office safe or bank safe deposit box
       ii. Money held for the client (including moneys received on the client’s
           behalf and advances for fees, costs and expenses) must be placed in a
           client trust account
               1. Attorney may not borrow or commingle client’s funds with the
                    attorney’s money (money cannot touch)
               2. Attorney may not steal money from their clients
               3. An individual interest-bearing trust account should be used to hold
                    client funds (and the interest belongs to the client)
                        a. Exception: “Pooled Trusts Accounts”
                                 i. An attorney can hold smaller funds for several
                                    clients at once as long as it:
                                         1. Is for a short period of time;
                                             2. The money is contained in a checking
                                                 account; and
                                             3. The interest goes first to pay the bank’s
                                                 service charges and the remainder goes to
                                                 the California State Bar to fund legal
                                                 services for the poor
          iii. If there is a disputed claim for fees or if a third party has a lawful claim
               over a client’s funds or property in the attorney’s custody, the attorney
               may withhold the disputed portion in the client trust account until
               resolution of the claim
          iv. Duties Related to Client Trust Accounts:
                    1. Keep good records for the client;
                    2. Render accountings;
                    3. Notify the client of moneys received on his behalf; and
                    4. Promptly pay money owed to the client
                    5. California also requires:
                            a. The attorney to keep records of client property for five
                                years after final distribution; and
                            b. Make these records available to the State Bar for audits
V.   Competence & Other Common Sense Duties Owed to the Client
     a. Duty of Competence
            i. Attorney has a duty to render competent service to his client.
                    1. “Competence”
                            a. The legal knowledge, skill, thoroughness, and preparation
                                reasonably necessary for the representation
           ii. Failure to render competent service can subject the attorney to:
                    1. Discipline by the Bar;
                    2. Disqualification as counsel in a litigated matter; and/or
                    3. Civil malpractice liability
          iii. If an attorney does not know the relevant law, he cannot take on a matter
                    1. He can put in the time to learn it without undue expense or delay to
                        the client; or
                    2. He can associate with a lawyer competent in the area
          iv. It violates the duty of competence to take a case when not in the physical
               or mental shape to take it (including just being overbooked)
           v. Malpractice Distinguished from Lack of Competence
                    1. Malpractice action is brought by an injured plaintiff (not by the
                        State Bar as in duty of competence cases) to get compensation (not
                        for punishment or protection of the public as in competence cases)
                        in a civil court (not a disciplinary tribunal as in competence cases)
                    2. An ethical violation may be relevant evidence of malpractice, it
                        does not create a presumption of malpractice
                    3. A malpractice claimant must prove a legal claim, such as breach of
                        contract, negligence, or breach of fiduciary duties.
                         a. If negligence is claimed, the plaintiff must prove a breach
                             of the duty of care owed by the attorney (the skill, care, and
                             judgment that a reasonably prudent practitioner would have
                             used under the circumstances; or the skill, care, and
                             judgment that a reasonably prudent specialized practitioner
                             would have used, if the attorney held herself out as a
b.   Accepting Representation
         i. An attorney is free to accept or reject any case
        ii. An attorney should accept, as part of his duty to the public and the
                 1. The case of the defenseless or oppressed “if the only reaso n to
                     refuse is selfish”; and
                 2. A fair share of pro bono work each year (50 hours of pro bono
                     work for truly indigent clients is urged by the ABA)
       iii. An attorney must reject a case if he would violate a law or disciplinary
            rule in taking it
c.   Scope of Representation
         i. The client makes the ultimate decisions about her substantive rights (e.g.,
            whether to testify in a criminal case, waive a jury trial, enter a plea, plead
            guilty or accept a settlement offer) (and must therefore, always be
            presented with any offers to plea or settle)
                 1. If a client asks about illegal conduct, the lawyer can and should
                     explain that the conduct is illegal, but must not recommend illegal
                     conduct or advise the client how to act illegally and get away with
        ii. The lawyer makes decisions on procedure and legal strategy (e.g., what
            discovery to seek or what motions to file)
       iii. If the lawyer and client disagree, attorney can limit the scope of
            representation, with client consent.
d.   Duty to Communicate
         i. Attorney has a duty to keep his client informed about the case and any
            substantial developments in the litigation (including any settlement offers)
                 1. This includes any settlement offers and returning phone calls
                         a. If a settlement offer is made to joint clients, the attorney
                             should consult each client prior to entering into
                             negotiations, and must convey the offer to each client and
                             make sure they agree on the division of the settlement
                             before accepting the settlement
                 2. Communication regarding the case made by the attorney’s
                     secretary, or letting one client to a case act as another client’s
                     interpreter, is inadequate to fulfill this duty to the client. Lawyer
                     has an obligation to personally communicate with his clients about
                     the case (or at least provide a neutral interpreter)
e.   Duty of Diligence
         i. Attorney must act on behalf of his client with reasonable diligence and
            promptness and must see the matter through to completion
                1. A lawyer should not make a fee agreement with a client that could
                    result in curtailing services in the middle of the relationship
f.   Duties on Withdrawal from Representation
         i. An attorney may enter into an agreement with his client that he will
            withdraw if the client refuses a settlement offer
        ii. A client cannot be penalized for firing an attorney (attorney cannot charge
            a fee as a penalty or forfeiture)
       iii. Three ways an attorney might leave a case before the matter is resolved
                1. Client Fires Attorney
                        a. If there is a contingency fee agreement, attorney may
                             recover fees for work already completed (under quantum
                             meruit) if and when the former client wins.
                2. Mandatory Withdrawal
                        a. An attorney must withdraw from a pending case if:
                                  i. Representation would violate a law or ethical rule
                                     (e.g., if continuing would require assisting in a
                                     crime; if attorney’s physical or mental shape
                                     renders him incompetent; if attorney would have to
                                     pursue a frivolous claim);
                                 ii. The lawyer’s physical or mental condition
                                     materially impairs the lawyer’s ability to represent
                                     the client; or
                                iii. The lawyer is fired
                3. Permissive Withdrawal
                        a. ABA Rules
                                  i. A lawyer may withdraw from representation of a
                                     client for any reason (e.g., refusal to pay fees) if it
                                     can be done without material harm to the client
                                     (looking at how far the case has progressed;
                                     whether a substitute attorney could adequately
                                     represent the client; and how many legal services
                                     the attorney has already provided)
                                 ii. A lawyer may also withdraw from representation
                                     (but may not reveal confidential information) if:
                                         1. The client persists in a course of action
                                               involving the lawyer’s services that the
                                               lawyer reasonably believes is criminal or
                                         2. The client has used the lawyer’s services (or
                                               his firm’s services) to perpetrate a past
                                               crime or fraud;
                                                   a. Attorney may make a “noisy
                                                       withdrawal” if he needs to disavow
                                                       any documents, opinions, etc. that
                                                  further a continuing crime (but this
                                                  does not allow revealing client
                                     3.   The client insists upon taking action that the
                                          lawyer considers repugnant or with which
                                          the lawyer has a fundamental disagreement;
                                     4.   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;
                                     5.   The representation will result in an
                                          unreasonable financial burden on the lawyer
                                          or has been rendered unreasonably difficult
                                          by the client; or
                                      6.  Other good cause for withdrawal exists
                      b. California
                               i. A lawyer may not withdrawal:
                                      1. Merely because withdrawal will not have a
                                          materially adverse effect on the client;
                                      2. If the client has used the lawyer’s (or his
                                          firm’s) services to commit a past crime or
                                          fraud; or
                                      3. If representation will result in an
                                          unreasonable financial burden on the lawyer
                      c. The court may deny the attorney’s withdrawal and attorney
                          must continue in the representation notwithstanding good
                          cause for terminating the representation
      iv. Procedure for Withdrawal
               1. Attorney must provide client with:
                      a. Timely reasonable notice prior to terminating legal
                      b. Any unspent fee and expense advances; and
                      c. The client’s papers and property (including work product)
               2. Attorney must return all unspent fees, papers, and property, even if
                  the client has not yet paid the attorney (California forbids
                  withholding a client’s materials for attorney’s fees)
g. Other Duties
        i. Attorney must be reasonable and sensible
       ii. Sexual Relations with Clients
               1. California Rule 3-120 (fill in from class notes)
                      a. A member of the Bar shall not:
                               i. Require or demand sexual relations with a client
                                  incident to or as a condition of employment
                              ii. Have sexual relations with a client
                                                1. Exception: Where the two had a consensual
                                                   sexual relationship before they became
                                                   lawyer and client (lawyer should still make
                                                   sure his ability to represent the client will
                                                   not be affected)
VI.   Duties of Candor to the Public & Dignity of the Profession: Advertising &
      a. Traditional professional ethics rules banned attorney advertising, but the Supre me
          Court has held that lawyer advertising is commercial speech protected by the First
          and Fourteenth Amendments, and a state may regulate lawyer advertising, but
          may not flatly prohibit it unless it is false or misleading
      b. Advertising (lawyer’s communication with the public at large, or a segment of the
               i. Generally (ABA and California)
                     1. Advertising and communications must be true and not misleading
                     2. Every advertisement must include the name and office address of
                         at least one lawyer or firm that is responsible for its content
                     3. Payments for Recommending a Lawyer’s Services
                              a. Lawyer may not give anything of value to a person for
                                  recommending the lawyer’s services
                                       i. This does not include paying the reasonable cost of
                                           advertising or paying the usual fee charge by a legal
                                           service plan or qualified lawyer referral service
                                      ii. This does not include fee splitting under California
              ii. Additional California Restrictions
                     1. Lawyer advertisements may not contain:
                              a. A guarantee or warranty of the outcome of a case;
                              b. Words or symbols that suggest quick cash or a quick
                              c. An impersonation of a lawyer without disclosing that it is
                                  an impersonation;
                              d. A dramatization of an accident or event without disclosing
                                  that it is a dramatization; and
                              e. A contingent fee offer that does not warn that a client who
                                  loses a case must still pay litigation costs if that is the
                     2. California rebuttably presumes these specific actions to be false or
                         misleading unless the lawyer can prove otherwise:
                              a. Communications delivered or made in person to a potential
                                  client who is in the hospital or who is suffering physical or
                                  mental stress (e.g., sending flowers to an accident victim);
                              b. Mailings (or even flowers sent) that seek fee-paying work
                                  and that are not clearly labeled as advertising material; and
                              c. Communications containing testimonials or endorsements
                                  without a disclaimer that the testimonials or endorsements
                                   are not a promise about the results in the potential client’s
             iii. Claims of legal specialties
                       1. An attorney may explain his fields of practice (e.g., “practice
                           limited to federal courts”), but he can only claim specialization if:
                               a. He is a patent attorney;
                               b. He is an admiralty attorney;
                               c. He has earned a certificate in a specific legal subject issued
                                   by the California Board of Legal Specialization; or
                               d. He has earned a certificate from a private organization that
                                   is either approved by the ABA or identified clearly as an
                                   organization not approved by the State
             iv. Claiming Partnerships or Affiliations
                       1. Attorneys may not improperly claim partnerships or affiliations
                       2. In California, it is a presumed violation of ethics rules for an
                           attorney to state or imply that he is affiliated with, or has a
                           relationship with, a government agency or non-profit.
              v. Attorney must keep records of the content and placement of any
                  advertisements for two years
       c. Solicitation (individualized contact with a lay person, initiated by the lawyer or
          her agent, that is designed to entice him to hire the lawyer)
               i. Attorney cannot seek professional employment for pecuniary gain by
                  initiating a live (face to face), telephone, or real- time electronic contact
                  with a prospective client who is not a lawyer and with whom the attorney
                  has had no prior professional, personal, or family relationship
                       1. Lawyer will not be subject to discipline for soliciting pro bono,
                           free services
              ii. Runners and cappers (agents) cannot do anything that a lawyer cannot do
             iii. Targeted Direct-Mail Solicitations
                       1. Absent actual knowledge that the prospective client does not wish
                           to receive communications from the attorney, the attorney may
                           send truthful, non-deceptive letters to persons known to face a
                           specific legal problem
                       2. The first page of the letter and the envelope must be labeled as
                           “advertising materials” (recorded communications must begin and
                           end with an announcement)
             iv. Group and Prepaid Legal Service Plans
                       1. A lawyer may participate in a group or prepaid legal service plan,
                           even though the plan uses personal contacts and live telephone
                           contacts to offer the plan to persons who are not known to need
                           legal services
                       2. A lawyer member may personally contact a group that might wish
                           to adopt a legal service plan for its members
VII.   Duty of Candor to the Court & Fairness to Your Adversary
       a. A lawyer is prohibited from engaging in conduct involving dishonesty, fraud,
          deceit, or misrepresentation
       i. This duty generally even overrides conflicting duties of loyalty and
          preservation of confidences
b. Duty to State the Law Truthfully
       i. Knowingly making a false statement of law to the court is subject to
      ii. Attorney has a duty to be candid about the law, and a duty to cite to
          adverse authority if:
              1. It is from a controlling jurisdiction; and
              2. It is directly on point
     iii. Presenting frivolous claims or defenses is unethical and is subject to
          disciplinary action
c. Duty to Present Facts and Evidence Truthfully
       i. An attorney may not:
              1. Make a false statement of material fact to a court;
              2. Offer evidence he knows to be false to a tribunal; or
              3. Fail to correct a false statement of material fact or law that he
                  previously made or presented to the court
      ii. Attorney may not counsel or assist a witness to testify falsely or to become
          “unavailable” to testify
     iii. Attorney may pay a witness for:
              1. Travel;
              2. Meals;
              3. Lodging;
              4. Time lost from a job; and
              5. Reasonable fees for expert witnesses, so long as the fee is not
                  contingent on the content of the testimony
     iv. Lying Witnesses
              1. If an attorney knows that a witness will lie in their testimony, he
                  cannot put that witness on the stand (rule is permissive if the
                  attorney only has a reasonable belief that the witness will lie or
                  there is some doubt)
      v. Clients Who Commit Perjury
              1. An attorney cannot knowingly facilitate client perjury.
                      a. In civil cases, the attorney can refuse to allow the client to
                      b. In criminal cases, the attorney who knows for certain his
                          client has, or is about to, lie on the stand must:
                                i. Counsel the client to testify truthfully, not take the
                                   stand, or recant his false testimony;
                               ii. If that fails:
                                        1. ABA: the attorney must attempt to withdraw
                                            from the case
                                        2. California: the attorney may attempt to
                                            withdraw (permissive)
                              iii. If withdrawal fails:
                                         1. ABA: The judge must be told (because the
                                             right to counsel and the duty of
                                             confidentiality do not shield perjury)
                                         2. California: The client may testify in a
                                             “narrative” fashion, but the attorney may not
                                             do anything that furthers the deception (e.g.,
                                             ask questions; argue points to the jury)
                               iv. A lawyer for a defendant in a criminal case is not
                                    subject to discipline for putting the prosecution to
                                    its burdens and requiring every element of the case
                                    to be proven beyond a reasonable doubt (e.g., even
                                    if the lawyer knows that there is incriminating
                                    evidence against his client and his client might be
                                    guilty, he can still argue to the jury that the
                                    prosecution failed to prove identity (or some other
                                    element) and that the jury should believe the
                                    defense witness’ testimony)
                       c. The obligation to correct perjury ends with the completion
                           of the proceedings
d. Duty to Produce Evidence
       i. Attorney cannot knowingly and unlawfully alter, destroy, falsify, or
          conceal/hide evidence or counsel his client to do so
              1. Example: If attorney does not know that a client’s ring is the same
                   ring as recorded on a burglary surveillance tape, but doesn’t want
                   the client to wear it for fear that it might create an implication that
                   he is guilty, the attorney may counsel the client to remove the ring;
                   however, if the attorney counsels the client to remove the ring with
                   the intention to hide evidence, the attorney can be subject to
      ii. If an attorney is reasonably certain that something given to him by the
          client and in his possession is a fruit or instrumentality of a crime, he must
          turn it over to the authorities (e.g., police, DA) in a reasonable time (e.g.,
          can do tests or authenticate it first)
              1. This is true even if the fruit or instrumentality is cash paid to the
                   attorney for legal services
              2. Attorney may not disclose where he received the item or what was
                   said to him by the client about the fruit or instrumentality (duty of
     iii. Lawyer learns about the location of real evidence from an attorney-client
          privileged communication, but does not take possession
              1. No turn over duty
              2. No disclosure duty
     iv. Lawyer learns about the location of real evidence through an attorney-
          client privileged communication and then removes the evidence from its
          original location or alters it
              1. Turn over duty
                       2. Must disclose the original location and condition of the evidence
               v. Lawyer takes possession of an item from a third party
                       1. Turn over duty
                       2. Disclosure duty
        e. Ex parte proceedings (unusual communications with the judge outside of the
           presence of the adversay)
                i. Attorney’s duty of fairness requires him to reveal all relevant information
                   to the judge in an ex parte proceeding, and this overrides the normal
                   presumption that the attorney is not to volunteer facts harmful to his
                   client’s case
        f. Duty to Uphold the Law
                i. Preventing the Client From Causing Death or Substantial Bodily Harm
                       1. ABA Rules
                                a. Attorney may disclose confidential facts to prevent death or
                                    substantial bodily harm
                       2. California Rules
                                a. Provides no explicit exception to the confidentiality rules to
                                    prevent a client from causing death or substantial bodily
               ii. Fraud
                       1. Attorney has no duty to reveal a client’s fraud, unless failure to do
                            so would constitute “assisting” in the crime
                       2. An attorney can be compelled to reveal confidential information
                            under the “future crime or fraud” exception to the attorney-client
              iii. Assisting in a Crime
                       1. An attorney may not counsel his client on how to break the law
                       2. If a client persists in a course of action that the attorney reasonably
                            believes is criminal or fraudulent, but he is not assisting in the
                            crime, the attorney may withdraw
                                a. The attorney may make a “noisy withdrawal,” but he
                                    should try to protect confidences about all past conduct and
                                    even future crimes
                       3. If continued representation would require the attorney to commit
                            or assist in committing a crime, he must withdraw
VIII.   Additional Duties of Fairness
        a. Dealing Fairly with Others
                i. Communication with adversaries and third parties
                       1. Attorney cannot make false statements of fact to other parties or
                            third parties
                       2. Attorney cannot violate the legal rights of a third person in order to
                            obtain evidence, or use means with no purpose but to delay,
                            burden, or embarrass them
               ii. Communication with anyone who is represented by counsel on the subject
                   of your inquiry
                     1. Unless a law specifically authorizes it, attorney cannot
                         communicate with them on the matter without consent of their
                     2. Organizational Entities
                             a. Corporate counsel consent is required for interviews of
                                 management or anyone whose statements can be imputed to
                                 the organization for liability or as an admission
                             b. Corporate counsel consent is not required before
                                 interviewing a former employee of the corporation, unless
                                 they were extensively exposed to confidential and
                                 privileged information
      b. Dealing With the Press
              i. The defendant’s right to a fair trial is balanced against the press’s and
                 public’s right to know
             ii. Attorneys (and their agents) must avoid making out of court statements
                 that they reasonably should know have a substantial likelihood of
                 materially prejudicing the case
                     1. Exceptions (things that may be told to the press/public through out
                         of court statements):
                             a. Matters in the public record or routine booking
                             b. Warning the public, informing them about an ongoing
                                 investigation, or asking them for help in the matter; and
                             c. Statements required to protect the client from substantial
                                 undue prejudice from recent publicity that was not self-
      c. Special Duties of Prosecutors
              i. The duty of a prosecutor is to seek justice, not necessarily win cases.
             ii. Prosecutors have a duty to:
                     1. Have probable cause;
                     2. Protect the accused’s right to counsel (including not subpoenaing a
                         lawyer to present evidence about a client unless it is essential and
                     3. Timely disclose evidence favorable to the defense; and
                     4. Exercise reasonable care to prevent associates from making
                         prejudicial pretrial publicity
            iii. Prosecutors cannot make comments that have a substantial likelihood of
                 heightening public condemnation of the accused
IX.   Preserving the Dignity of the Court and Additional Duties
      a. Duty to Expedite Cases
              i. ABA Rule
                     1. Lawyers have an affirmative duty to expedite cases
             ii. California Rule
                     1. Lawyers cannot delay cases:
                             a. To harass an adversary; or
                             b. For their own personal gain or convenience
     iii. Attorney has a duty to follow valid procedural rules and court orders,
          unless he is making a good faith challenge to their validity (e.g., cannot
          abuse or obstruct discovery)
b. Duty to Preserve the Impartiality and Decorum of the Tribunal
       i. Attorney may not try to improperly influence anyone
              1. Before and during trial, the attorney may not talk to any
                  prospective or empanelled member of the jury
              2. After the trial is over, if local law permits, the lawyer may
                  interview jurors, as long as he does not harass them or influence
                  their future jury service
      ii. Attorney may not use trickery or “chicanery” (e.g., referring to
          inadmissible evidence or matters unsupported by evidence; asserting
          personal knowledge of the facts at issue)
     iii. Duty to Avoid Disruptive Conduct
              1. An attorney must refrain from abusive or hostile conduct,
                  belligerence, or theatrics
                      a. Under the ABA Rules, a lawyer “may stand firm against
                          abuse by a judge, but should avoid reciprocation”
c. Additional Duties to the Profession and the Public
       i. Unauthorized Practice of Law (“doing things that call for the professional
          judgment of a lawyer”)
              1. Lawyer may not engage in the unauthorized (or unlicensed)
                  practice of law (in order to safeguard the public from
                      a. Practicing in a state in which the attorney is not admitted is
                          a violation, unless it is allowed under exceptions for “pro
                          hac vice” appearances in a specific matter or multi-
                          jurisdictional practices
              2. A lawyer is subject to discipline for assisting a nonlawyer to
                  engaged in the unauthorized practice of law (e.g., negotiating with
                  insurance adjusters; discussing proposed settlements with clients;
                  explaining releases and executing legal documents)
                      a. It is permissible for nonlawyers to perform investigation
                          and witness interviews, however
      ii. Conduct Generally
              1. A lawyer should not engage in conduct involving dishonesty,
                  fraud, deceit, or misrepresentation (including in their private
                  business or personal affairs)
     iii. Reporting Misconduct of Attorneys
              1. ABA Rules
                      a. A lawyer is required to report another lawyer’s or judge’s
                          violation of the ethical rules if it raises a substantial
                          question as to that lawyer’s honesty, trustworthiness, or
                          fitness as a lawyer
              2. California Rules
                              a. California does not require a lawyer to report another
                                 lawyer’s or judge’s violation of the ethical rules, but
                                 instead requires self-reporting by the lawyer of any felony
                                 charges, civil liabilities for fraud or breach of fiduciary
                                 duty, disciplinary actions taken against him in another
                                 jurisdiction, and other difficulties
X.   Duties of Subordinate Lawyers
     a. If an attorney is under the control and supervision of another attorney (e.g., a
        senior partner) who orders the attorney to take an action in violation of the ethical
              i. If the attorney’s ethical violation is clear, the attorney is subject to
             ii. If the attorney’s ethical violation is debatable, the partner is solely
            iii. The senior partner is always in violation and subject to discipline if he
                 ordered or ratified the action, had direct supervisory authority, and knew
                 of the conduct at the time
            iv. In California, the attorney can be disciplined for merely knowing about a
                 fellow firm member’s disciplinary violation and doing nothing to prevent

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