Term
| The duty of confidentiality is the duty to... |
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Definition
| not reveal anything related to your client's representation without his or her consent. This duty applies regardless of whether the client requested that the information be kept confidential, or whether its revelation might harm or embarrass the client. |
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Term
| The duty of confidentiality can attach even before... |
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Definition
| a client-lawyer relationship is formed or even if none is formed. However, if no employment results, the party seeking to disqualify a lawyer on the basis of confidentiality bears the burden of proving confidences were actually imparted. |
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Term
| Once attached, the duty of confidentiality continues even after.... |
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Definition
| the formal representation ends, and even after death. |
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Term
| What client information is protected by a lawyer's duty of confidentiality? |
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Definition
| The duty applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the fact that the lawyer is the legal representative of the client, including those that could reasonably lead to discovery of information related to the representation. |
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Term
| Exceptions to the duty of confidentiality...(And the definition of each.) |
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Definition
1. Consent (If the client consent after consultation, a lawyer may reveal otherwise confidential information.)
2. Lawyer defending him/herself (A lawyer may reveal client information as necessary to establish a claim or defense in the context of malpractice, disciplinary actions, and client’s refusal to pay.)
3. If compelled by final court order, law, or other ethical duty. |
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Term
| When does a lawyer have a client's implied consent to reveal confidential information? |
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Definition
| A lawyer has implied consent to reveal client information when that revelation is necessary to render legal services. |
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Term
| Approach to disclosures to protect against substantial bodily harm...(ABA Model Rules v. CA Approach) |
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Definition
ABA: A lawyer may reveal client information necessary to prevent an act which the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm.
CA: To disclose you must first, if reasonable in the circumstances:
i. Make a good faith effort to persuade the client not to commit the act, AND
ii. Inform the client of your decision to reveal his confidences. |
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Term
| Approach to disclosures to protect fraud or crimes causing financial injury...(ABA Model Rules v. CA Approach) |
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Definition
ABA: A lawyer may reveal client information if the client has used or is using his services to commit a crime, AND the disclosure would prevent or mitigate substantial financial loss.
CA: Recognizes no such exception. |
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Term
| The duty of loyalty is the duty to avoid... |
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Definition
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Term
| What types of conflicts rise to the level of a conflict of interest? |
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Definition
| Interests of another client, the lawyer him/herself, or a third party which materially limit or are adverse to loyal representation of the client. |
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Term
| What duties does a lawyer owe to his/her client? |
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Definition
| The duties of confidentiality, loyalty, financial responsibility, competence, care, diligence, and communication. |
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Term
| What effect does ignorance of a conflict have on a lawyer's responsibility for conflicts of interest? |
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Definition
| A lawyer is responsible for a conflict even if he is ignorant about the existence of the conflict. |
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Term
| Exception to the general rule that a lawyer is responsible for a conflict even if he is ignorant about the existence of the conflict.... |
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Definition
| Short-term legal services providers under a court, agency, or non-profit programs are only responsible for conflicts they actually know of. |
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Term
| What does the doctrine of "imputed disqualification" state? |
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Definition
| Any group of lawyers that work together closely or share responsibilities share each others’ conflicts. |
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Term
| Can an imputed conflict give rise to discipline for a lawyer? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: Yes. A lawyer can be disqualified from representation and/or punished for an imputed conflict of interest.
CA: Only provides for disqualification in the context of imputed disqualification, not for punishment. |
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Term
| Exception to the doctrine of imputed disqualification... (ABA Model Rules vs. CA Approach) |
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Definition
When one lawyer’s conflicts arise from previous government service or work for adverse parties at a previous firm, representation by her colleagues may be allowed with safeguards such as screening.
CA: Also relaxes imputation of conflicts that are purely personal to the lawyer and for short-term legal services under non-profit or court programs. |
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Term
| What does it mean to "screen" a lawyer? |
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Definition
b. Screening
To draw an ethical wall around a lawyer with a conflict, thereby protecting their colleagues from imputed disqualification. Client consent will also be required in order for a screening to be effective.. |
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Term
| When can a conflict of interest be overcome? |
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Definition
1. The lawyer reasonably believes he can represent everyone effectively despite the potential and actual conflicts of interest; (CA: Does not require that the belief be reasonable, just that the lawyer has it.)
2. The lawyer informs each affected client of the details of the conflict,
3. The client consents, confirmed in writing. (CA: If the conflict is personal to the lawyer, the lawyer merely needs to disclose the conflict, he does not need client consent.)
AND
4. If necessary under the circumstances, screening may also be required. |
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Term
| It is inherently unreasonable to attempt to represent opposite sides in... |
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Definition
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Term
| CA's special conflicts of interest exception for policy holders and insurance companies... |
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Definition
| There is no conflict of interests when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer’s interest is ONLY as an indemnity provider. |
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Term
| Can a lawyer represent a client with a adverse point of view on a POSITION as another client? |
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Definition
| Positions do not usually create conflicts, parties do, but if either party would be disadvantage by the representation of a position then the lawyer must obtain consent. |
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Term
| A lawyer cannot take on a new client if that client interests are... |
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Definition
| materially adverse to a former client without the former’s informed consent. |
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Term
| Can you use confidential information against a former client without his/her consent? |
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Definition
| Only if necessary to establish a claim or defense of your own, but not for any other reason. |
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Term
| When an attorney leaves a firm, can that firm represent a client against any of the former clients of the attorney that left, or is the firm disqualified by way of imputed disqualification? |
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Definition
As to the firm from which the individual left, it cannot represent a client against any of the lawyer's prior clients if:
a. The matters are substantially related or the same, AND
b. Any remaining lawyer has confidential, material information. |
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Term
| When an attorney joins a new firm, will his new colleagues be imputedly disqualified from representing clients with interests adverse to his clients? |
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Definition
As to the new from which the lawyer moves, imputed disqualification will not run to members of the new firm if:
1. The lawyer is timely and effectively screened,
2. Receives no direct part of the fee,
3. The attorney's former client receives notice, AND
4. There are period certifications of compliance with these conditions. |
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Term
| ABA Model Rules bar a government lawyer who worked personally and substantially on a matter from... |
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Definition
working on the same matter later in private practice without the government’s consent.
A "matter" is a specific dispute between specific people over specific issues. |
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Term
| The ABA Model Rules provide for an exception to the general rules of imputed disqualification of the colleagues of a former government attorney if: |
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Definition
a. The former government attorney is screened off;
b. He does not receive any part of the fee in the matter (pre-arranged salaries or partnership share are OK); AND
c. The former government employer is informed.
*These same rules apply to judges, clerks, arbitrators, and any other JDs who worked in prior government proceedings. |
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Term
| California explicitly disqualifies a prosecutor in a case from later... |
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Definition
| working on the defense side of that case. |
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Term
| A lawyer must not solicit a ______________________ from a client, or __________________ if it provides a substantial gift his or her relative. |
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Definition
substantial gift;
draft a legal instrument for a client who is not your close relative |
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Term
| Can a lawyer limit his client's right to report report the lawyer's ethical violations? |
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Definition
| No, a lawyer cannot limit his client’s right to report him for ethical violations or other professional violations. |
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Term
| Can a lawyer by contract limit his malpractice liability when he enters into a lawyer-client relationship with a client? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: You cannot limit your malpractice liability, UNLESS the client is independently represented in making the agreement.
CA: You just can’t do this…period. |
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Term
| A lawyer can only settle a malpractice claim against him if... |
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Definition
| he gives the client written advice to seek outside counsel. |
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Term
| Can a lawyer procure publication rights to his client's story? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: You cannot seek the right of publication to your client’s story until after representation has ended.
CA: Case law discourages contracts before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents to the contract. |
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Term
| Is a allowed to let his client borrow money? (ABA Model Rule vs. CA Approach) |
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Definition
ABA: The only acceptable loans or advances are litigation expenses for indigent client, and advances of litigation expenses in cases of contingent fees.
CA: Allows loans for any purpose so long as there is a written loan agreement. However, a lawyer cannot promise to pay a PROSPECTIVE CLIENT’S debts. |
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Term
| A lawyer may enter into a business relationship with her client if: |
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Definition
i. The terms of the deal are fair to the client,
ii. The terms are disclosed in an understandable writing,
iii. The client had the opportunity to consult an outside attorney, AND
iv. Your client gives written consent. (This is not required in CA.) |
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Term
| A lawyer may obtain an business interest adverse to her client only if: (These rules are IN ADDITION TO the requirements which must be met to overcome any conflict of interest) |
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Definition
i. The terms of the deal are fair to the client,
ii. The terms are disclosed in an understandable writing,
iii. The client had the opportunity to consult an outside attorney, AND
iv. Your client gives written consent. (This is not required in CA.) |
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Term
| Is a lawyer allowed to serve on the Board of an organization? |
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Definition
| Yes, however service on the Board of a CORPORATE CLIENT is strongly discouraged because of the potential for conflicts of interest. |
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Term
| When is counsel allowed to appear as a witness and as counsel IN THE SAME TRIAL? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: Counsel is barred from appearing as a witness and as counsel in the same trial, UNLESS:
i. His testimony is uncontested,
ii. His testimony is regarding the nature and value of services rendered, OR
iii. If his distinctive value to the case would mean withdrawal would impose substantial hardship on the client.
* However, even in these situations, if the testimony might prejudice the client, consent is required, and the conflict is imputed to the lawyer's colleagues.
CA: A lawyer may testify in a bench trial, and if the client consents in a jury trial. |
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Term
| A lawyer cannot oppose a party represented by a person who is... |
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Definition
a close, immediate relative of the lawyer's without client consent.
CA: The lawyer also can’t oppose a party represented by roommates or boyfriend or girlfriend. But, the lawyer is only required to make written disclosure of the relationship to the client in order to overcome any of these relationships. The client can then fire the lawyer if they want. Similarly, the lawyer is also required to give written disclosure of any legal, business, or personal relationship with any party or witness in the same matter, but does not impute these conflicts to lawyer’s colleagues. |
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Term
| Can a third party pay for a client's representation? |
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Definition
| Only with the informed consent of the client. |
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Term
| When a lawyer represents an organization as his client, he must act in the best interest of... |
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Definition
| of the entity even if an officer, employee, or other associated person acts to the contrary. |
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Term
| Procedure for reporting corporate legal violations: (ABA Model Rules vs. CA Approach) |
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Definition
ABA:
i. The lawyer MUST report the matter to the CEO or Chief Legal Counsel of the company.
ii. If they do not respond, the lawyer MUST go to the Board or the highest authority in the company.
iii. Finally, if reasonably necessary to prevent fraud, perjury or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved the lawyer's services, then he MAY disclose confidential information outside of the corporation to the appropriate authorities.
CA: Does not permit reporting outside of the company. |
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Term
| Exception to the general rule that a lawyer may not report an organizational client's legal violations outside of the organization... |
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Definition
| If the violation relates to the exchange of securities, then federal law preempts CA law and will allow the attorney to report to the Securities Exchange Commission. |
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Term
| In non-contingent fee cases, fee agreements must include: |
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Definition
How the fee is calculated; what services are covered, and the lawyer and client’s duties.
CA: Agreements must also be in writing, UNLESS
i. The fee is under $1000,
ii. Is with a corporate client,
iii. Is for routine services for a regular client, OR
iv. It’s an emergency or impractical for the agreement to be written. |
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Term
| In contingent fee cases, fee agreements must be in writing and signed by the client and must contain: |
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Definition
a. The lawyer’s fee percentage,
b. What expenses are to be deducted from the recovery, AND
c. Whether the lawyer’s percentage is taken before or after the expenses.
CA: Also requires that the agreement state:
1. How work not covered by the contingency fee will be paid, AND
2. That the lawyers’ fees are negotiable. |
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Term
| When are contingent fees ok? |
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Definition
Any type of case except domestic relations and criminal.
CA: Case law indicates that contingent fees are acceptable in domestic relations cases as long as the do not promote dissolution. |
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Term
| Can a lawyer recover any portion of a contingency fee if the lawyer is terminated before the damages award is paid? |
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Definition
| An attorney can recover the portion of the contingency fee he's owed—relative to the total recovered and the work he did--but he must wait until the case is resolved. |
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Term
| When are attorneys’ fees too high? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: When they are not reasonable, taking into account all relevant circumstances (i.e., the attorney’s skill, the novelty of the case, the time required…etc.).
CA: When they are unconscionable. |
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Term
| Under California law, where an attorney represents two clients in the same matter, can he bill them both for the meetings he attends and the work he does, or does he have to split the bill between the two of them? |
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Definition
He can bill them both if:
i. The fee charged to each is not unconscionable;
ii. The attorney clearly disclosed the billing practice at the outset of the relationship; AND
iii. The attorney obtained client consent. |
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Term
| Is arbitration required in attorney-client fee disputes? (ABA Model Rules vs. CA Approach) |
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Definition
| Arbitration is encouraged by the ABA in fee disputes, but it is required in CA if the client sues the lawyer and requests it. |
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Term
| When is it ok to split a fee with another lawyer? |
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Definition
1. If the lawyer is in your law firm (and screening is not a concern). OR
2. If the lawyer is outside your firm fee splitting is ok if: i. The total fee is ethical, (Required under CA law) ii. There is written disclosure, iii. Client consents, AND (Required under CA law) iv. The division is proportional to the work done by each attorney, unless each is jointly responsible for the action. CA: Just requires i and iii. *A lawyer cannot split her fee with a non-lawyer. |
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Term
| Exceptions to the general rule that a lawyer cannot split her fee with a non-lawyer... |
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Definition
1. Death benefits can be paid to a lawyer’s family after he dies,
2. Salaries can be paid to non-lawyers within a firm (i.e., secretaries, paralegals…etc.)
3. Court-awarded legal fees can be shared with the non-profit organization that employed or recommended the lawyer. |
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Term
| In non-contingent fee cases, fee agreements must include: |
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Definition
How the fee is calculated; what services are covered, and the lawyer and client’s duties.
CA: Agreements must also be in writing, UNLESS
i. The fee is under $1000,
ii. Is with a corporate client,
iii. Is for routine services for a regular client, OR
iv. It’s an emergency or impractical for the agreement to be written. |
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Term
| In contingent fee cases, fee agreements must be in writing and signed by the client and must contain: |
|
Definition
a. The lawyer’s fee percentage,
b. What expenses are to be deducted from the recovery, AND
c. Whether the lawyer’s percentage is taken before or after the expenses.
CA: Also requires that the agreement state:
1. How work not covered by the contingency fee will be paid, AND
2. That the lawyers’ fees are negotiable. |
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Term
| When are contingent fees ok? |
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Definition
Any type of case except domestic relations and criminal.
CA: Case law indicates that contingent fees are acceptable in domestic relations cases as long as the do not promote dissolution. |
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Term
| Can a lawyer recover any portion of a contingency fee if the lawyer is terminated before the damages award is paid? |
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Definition
| An attorney can recover the portion of the contingency fee he's owed—relative to the total recovered and the work he did--but he must wait until the case is resolved. |
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Term
| When are attorneys’ fees too high? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: When they are not reasonable, taking into account all relevant circumstances (i.e., the attorney’s skill, the novelty of the case, the time required…etc.).
CA: When they are unconscionable. |
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Term
| Under California law, where an attorney represents two clients in the same matter, can he bill them both for the meetings he attends and the work he does, or does he have to split the bill between the two of them? |
|
Definition
He can bill them both if:
i. The fee charged to each is not unconscionable;
ii. The attorney clearly disclosed the billing practice at the outset of the relationship; AND
iii. The attorney obtained client consent. |
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Term
| Is arbitration required in attorney-client fee disputes? (ABA Model Rules vs. CA Approach) |
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Definition
| Arbitration is encouraged by the ABA in fee disputes, but it is required in CA if the client sues the lawyer and requests it. |
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Term
| When is it ok to split a fee with another lawyer? |
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Definition
1. If the lawyer is in your law firm (and screening is not a concern).
2. If the lawyer is outside your firm fee splitting is ok if:
i. The total fee is ethical, (Required under CA law)
ii. There is written disclosure,
iii. Client consents, AND (Required under CA law)
iv. The division is proportional to the work done by each attorney, unless each is jointly responsible for the action.
CA: Just requires i and iii.
*A lawyer cannot split her fee with a non-lawyer. |
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Term
| Exceptions to the general rule that a lawyer cannot split her fee with a non-lawyer... |
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Definition
1. Death benefits can be paid to a lawyer’s family after he dies,
2. Salaries can be paid to non-lawyers within a firm (i.e., secretaries, paralegals…etc.)
3. Court-awarded legal fees can be shared with the non-profit organization that employed or recommended the lawyer. |
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Term
| A lawyer cannot partner with non-lawyers to _________________. |
|
Definition
provide legal services.
Likewise, non-lawyers cannot be partners, shareholders, officers, or control or direct a lawyer’s professional judgment. |
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Term
| When are reciprocal referral agreements with other lawyers ok? |
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Definition
| When they are not exclusive, AND the arrangement is explained to the client. |
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Term
| If a lawyer provides law-related services beyond the practice of law... |
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Definition
| the ethical rules apply to his actions in those services. If the services are provided by a separate entity, but the lawyer controls that entity, he must inform the client that attorney-client safeguards will not apply to their relationship. |
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Term
| A lawyer has a duty to safeguard his client’s property by... |
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Definition
| labeling and storing it in a safe place such as an office safe. |
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Term
| Money held for a client must be placed in a _______________. This includes _________________________, and __________________________. |
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Definition
| client trust account; money received on the client's behalf; client advances for costs, expenses and fees. |
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Term
| What type of account should a client trust account be? |
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Definition
| Normally, an individual, interest-bearing account should be used; with the interest belonging to the client. |
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Term
| Exception to the general requirement that a client trust fund should be an individual, interest-bearing account... |
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Definition
| Smaller funds held for short periods of time for multiple clients can be deposited together in pooled client trust accounts. The interest on these accounts is paid to the state bar in order to fund legal services for the poor. |
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Term
| What duties does a lawyer have with respect to a client trust account? |
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Definition
1. A lawyer has a duty to keep records on trust accounts, render accountings to the client, notify him of moneys received, and promptly pay money due to him. CA: Requires that records of client property be kept for 5 years after final distribution.
4. If a lawyer and a client have a fee dispute or if a third party has a lawful claim over the client’s funds or property in a lawyer’s custody, he must withhold the disputed portion in the client trust account until resolution of the claim. |
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Term
| If a lawyer and a client have a fee dispute or if a third party has a lawful claim over the client’s funds or property in a lawyer’s custody, the lawyer must... |
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Definition
| withhold the disputed portion in the client trust account until resolution of the claim. |
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Term
| Under California law, if a lawyer does not have professional malpractice insurance, he must... |
|
Definition
disclose that fact to his client in writing at the time of the engagement, if the lawyer is doing more than four hours of work for the client.
Exception: Government lawyers and in-house counsel do not have to do this. |
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Term
| The duty of competence is the duty to... |
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Definition
| Use the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. |
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Term
| Can you take on a matter if you do not know the relevant law? |
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Definition
| Yes if you can learn it without undue expense or delay to the client, or if you associate a lawyer competent in the area. |
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Term
| What are the potential consequences of incompetence? |
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Definition
a. Discipline by the bar,
b. Disqualification in a litigated matter,
c. Civil malpractice liability, AND
d. Possible overturning of a judgment for ineffective assistance of counsel. |
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Term
| In order to recover under a malpractice theory, a plaintiff must prove what? |
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Definition
| That the lawyer breached his duty of care by not acting with the skill, care and judgment that a reasonably prudent general practitioner in the region would have used in the circumstances. |
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Term
| The duty of diligence is the duty to... |
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Definition
| diligently, promptly and zealously pursue a case to completion. |
|
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Term
| The duty of care is the duty to... |
|
Definition
| act with the skill, care and judgment that a reasonably prudent general practitioner in the region would use in the circumstances. |
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Term
| The duty to communicate is the duty to... |
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Definition
| keep clients informed about a case, including settlement offers and to answer messages. |
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Term
| If a settlement offer is made to joint clients, a lawyer must... |
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Definition
| convey the offer to all of the clients and be sure they agree on the division of the settlement before accepting. |
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Term
| Must a lawyer accept every client? |
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Definition
| A lawyer is free to accept or reject any case. However, the lawyer should accept the cases of the defenseless or oppressed, as part of his duty to the public and profession, if the only reason to refuse representation is a selfish one, and he should do a fair share of the work without charge. |
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Term
| When must a lawyer reject a case? |
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Definition
| A lawyer must reject a case if he would violate a law or ethical rule by accepting it. |
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Term
| In the lawyer-client relationship, how is the decision making authority divided? |
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Definition
1. The client makes decisions about his/her substantive legal rights.
2. The lawyer makes decisions about legal strategy. |
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Term
| What happens if the client and lawyer disagree about a particular course of action? |
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Definition
| The lawyer may limit the scope of his representation with client consent. |
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Term
| A lawyer MUST withdrawal from a pending case if: |
|
Definition
a. He is fired, OR
b. If continuing requires assisting in a crime. |
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Term
| A lawyer MAY withdraw from a case if: |
|
Definition
1. He convinces the court there is good cause for the withdrawal, AND the withdrawal will not cause undue delay or disruption to the client’s case. OR
2. The representation will result in an unreasonable financial burden on the lawyer or when the client substantially fails to fulfill his financial obligations to the lawyer. |
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Term
| In order to withdraw, a lawyer must: |
|
Definition
1. Provide timely notice to the client, AND
2. Promptly return the following:
i. Any unspent fee and expense advances, AND
ii. All property and material papers of the client, including everything needed to pursue the case (even attorney work product).
CA: Forbids an attorney from holding his former client’s materials hostage in order to get paid. |
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Term
| Can a lawyer have consensual sex with his/her client? (ABA Model Rules vs. California Approach) |
|
Definition
ABA: Only if the relationship pre-existed the representation.
CA: As long as the lawyer does not demand sex as payment for services, exercise coercion or undue influence for the sex, and as long as the lawyer can continue to perform competently while engaging in the sexual relationship. |
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Term
| Attorney advertising must not be... |
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Definition
| false or misleading. (This can either take the form of a false statement, or the omission of a material fact.) |
|
|
Term
| What does it mean for an advertisement to be "misleading?" |
|
Definition
| A regular person would interpret the advertisement in a particular way, when really a different interpretation is correct. |
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Term
| Advertisement cannot raise _______________ or make ________________. |
|
Definition
| unjustified expectations; unverifiable comparisons |
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Term
| California presumes improper any ad that... |
|
Definition
| contains guarantees, warranties, or predictions of a particular result. |
|
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Term
| No testimonial can be used unless there... |
|
Definition
| is an express disclaimer that the testimonial is not a guarantee, warranty, or a prediction of success. |
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Term
| Can an attorney claim to be a "specialist" in a particular field? (ABA Model Rules vs. California Approach) |
|
Definition
ABA: Only if the lawyer is a specialist certified by the relevant authority, and this authority must be identified in the advertisement.
CA: Only if the individual is a specialist certified by the California Board of Legal Specialization. (Certification requires experience, an examination, education, and evaluations.) |
|
|
Term
| Advertising must not _______________ someone who has said she want to be left alone. |
|
Definition
|
|
Term
| Every lawyer advertisement must... |
|
Definition
| be labeled as advertising and, if applicable, “a dramatization” or “impersonation.” It must also identify at least one lawyer responsible for its contents. |
|
|
Term
| How long must a lawyer keep records of the content and placement of his/her ads? |
|
Definition
| A lawyer must keep records of the content and placement of any ad for 2 years. |
|
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Term
| With regard to solicitation of new client, a lawyer may not...(probably need to know this rule verbatim) |
|
Definition
| seek professional employment for pecuniary gain by initiating a live or telephone conversation with a prospective client with whom the lawyer has no prior professional or family relationship. |
|
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Term
| Can a lawyer solicit business in a chat room? (ABA Model Rules vs. CA Approach) |
|
Definition
ABA: Yes, the rule against solicitation applies to “real-time electronic contact.”
CA: No, the solicitation rule only applies to live or telephone conversations. |
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Term
| California law presumes improper communication _____________ or _____________________, and to potential clients that the lawyer should know are not ________________ to exercise reasonable judgment. |
|
Definition
| made at the scene of an accident; en route to a medical facility; in the physical or mental state |
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|
Term
| Are a lawyer's agents governed by the same rules that a lawyer is? |
|
Definition
| Yes, a lawyer's agents can’t do anything that a lawyer can’t do. (I.e., a lawyer's agent cannot solicit business, if the lawyer him/herself could not have.) |
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Term
| A lawyer cannot ever engage in conduct involving... |
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Definition
| dishonesty, fraud, deceit, or misrepresentation. The duty to avoid this conduct trumps a lawyers duties of confidentiality and loyalty. |
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Term
| With respect to his duty of candor to a tribunal, a lawyer... |
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Definition
| must refuse to make false statement of material fact to a tribunal, must not offer evidence he knows is false to a tribunal, and may not fail to correct a false statement of fact or law that the lawyer previously presented. |
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Term
| What do you do if you KNOW your client is going to perjure himself? (In a civil case) |
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Definition
| Refuse to call your client as a witness. |
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Term
| What do you do if you KNOW your client is going to perjure himself? (In a criminal case) |
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Definition
i. Counsel your client to testify truthfully or not to take the stand,
ii. If that fails, try to withdraw from the case,
iii. If that fails,
1. ABA: Tell the judge.
2. CA: Allow your client to testify in narrative fashion, do not argue the points he made during his testimony and do nothing to further the deception. |
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Term
| What do you do if you REASONABLY BELIEVE your client is going to perjure himself? |
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Definition
You MAY:
i. Counsel your client to testify truthfully or not to take the stand,
ii. If that fails, try to withdraw from the case,
iii. If that fails,
1. ABA: Tell the judge.
2. CA: Allow your client to testify in narrative fashion, do not argue the points he made during his testimony and do nothing to further the deception.
These are the same steps one MUST take if they KNOW that their client is going to perjure him/herself, except that they are only permissive if the lawyer does not KNOW that the client is going to commit perjury. |
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Term
| What do you do if you know a witness is going to perjure him or herself? |
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Definition
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Term
| What do you do if you find out that your client committed perjury after the case is over? |
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Definition
| Take reasonable remedial steps (i.e., tell your client that he should tell the court), but once the proceeding ends you have no further duty of candor to the court. |
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Term
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Definition
| Unless local law prohibits it, witness may have basic expenses paid and reasonable fees for may be paid expert witnesses, as long as payment is not contingent on the content of the testimony. |
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Term
| Lawyer's duties with respect to the production of evidence (non-prosecutors)... |
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Definition
| A lawyer must not suppress any evidence that you or your client has a legal obligation to reveal or produce, regardless of your duty of loyalty. Likewise, a lawyer must not obstruct access to or tamper with the fruits or instrumentalities of a crime. |
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Term
| When can a lawyer be compelled to produce evidence? |
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Definition
| A lawyer may only be compelled to produce evidence that he or she, or an agent of his or hers, has moved or altered. However, the lawyer may retain the evidence for a reasonable time in order to prepare his/her client’s case, so long as he/she does not alter the evidence in the process. |
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Term
| Prosecutor's duties with respect to the production of evidence... |
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Definition
| Prosecutors have the special duty to timely disclose evidence favorable to the Defense. The ethical duty exceeds the Constitutional Brady obligation, requiring disclosure without regard to admissibility or impact on the outcome. |
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Term
| In ex parte communications with the judge a lawyer must... |
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Definition
| volunteer all relevant information, trumping the normal presumption that a lawyer may not reveal facts harmful to his client. |
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Term
| When must a lawyer cite to adverse authority? |
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Definition
| A lawyer must cite to adverse authority if controlling and on point. |
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Term
| If a lawyer knows that a document was sent to him inadvertently, what must he do? |
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Definition
| He must stop reading the document and notify the opposing counsel who sent it to him. |
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Term
| In a document intentionally sent to him, may a lawyer mine the “metadata” of the document? |
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Definition
| Yes, the metadata is considered part of the disclosed material in the document. |
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Term
| Unless authorized by law or in giving a second legal opinion, a lawyer must not communicate with a person who he knows... |
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Definition
is represented by counsel on the subject of his inquiry without consent of his counsel. Similarly, if the party represented is an organization, consent is required for interviews of an officer, director, managing agent, and any other current employee whose communication might bind or be imputed to the organization or constitute an admission on its part.
CA: This rule only applies with respect to parties currently involved in litigation. |
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Term
| Prosecutors must have ________________ in order to prosecute a case. |
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Definition
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Term
| A lawyer has a duty to not to make comments to the press which will... |
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Definition
| interfere with any defendant’s right to a fair trial. However, the lawyer may respond to the press and public’s right to know information, so long as in doing so the lawyer and his agents do not make out of court statement the he reasonably should know have a substantial likelihood of materially prejudicing the case. |
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Term
| Exceptions to the general rule prohibiting lawyer from making comments to the press which may prejudice a case... |
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Definition
1. Matters in the public record.
2. Routine booking information.
3. Warnings to the public.
4. Informing the public of the existence of an investigation. AND
5. Statements required to protect your client from substantial undue prejudice from recent publicity, not self-initiated. |
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Term
| Prosecutors and their aides must not make comments to the press that have a substantial likelihood of... |
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Definition
| heightening public condemnation of the accused. |
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Term
| Before and during trial a lawyer must not talk to... |
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Definition
| any prospective or empaneled juror. However, after trial a lawyer may interview consenting jurors. |
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Term
| Under California law, a lawyer must do what in order to interview jurors after a trial? |
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Definition
| The lawyer must tell the jurors that they can refuse an interview and have a copy of any resulting court declaration. |
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Term
| Lawyer must refrain from "chicanery" in court. What the fuck is chicanery? |
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Definition
| Trickery, especially by lawyers and politicians. (It just means don’t be tricky in court.) Similarly, a lawyer must refrain from abusive conduct, belligerence, or theatrics in court. |
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Term
| Do lawyers have any duty to speed a case along? (ABA Model Rules vs. CA Approach) |
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Definition
ABA: Yes, lawyers have an affirmative duty to expedite cases.
CA: A lawyer must not deny cases to harass an adversary, or for your own personal gain or convenience. |
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Term
| Lawyers have a duty to follow valid procedural rules or court orders, unless... |
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Definition
| they are making a good faith challenge to their validity. |
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Term
| A “lawyer” must not engage in... |
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Definition
| the unauthorized practice of law. |
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Term
| What is "the unauthorized practice of law?" |
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Definition
Practice in a state while suspended or not admitted is a violation of this rule.
CA: The “practice of law” includes activities beyond the capacity and knowledge or lay persons. |
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Term
| When can a lawyer practice law in a state in which he/she is not admitted? |
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Definition
1. When the practice is otherwise allowed by law,
2. When he is practice under a pro hac vice order by the local court, OR
3. ABA: He is practicing in accordance with the ABA's multi-jurisdictional practice allowance for temporary practice by an out-of-state lawyer. OR CA: He is practicing in accordance with California's multi-jurisdictional practice allowance. |
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Term
| Requirements for a lawyer to fall within the ABA's multi-jurisdictional practice allowance: |
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Definition
1. The lawyer is in good standing AND
2. The lawyer associates with a locally-admitted attorney who actively participates in the matter,
3. The services relate to alternative dispute resolution, OR
4. The matter arises out of matters reasonably related to the lawyer’s practice in a state where she is admitted and the forum does not require a pro hac vice order. |
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Term
| A lawyer must report to the appropriate profession authority any other lawyer’s or judges violation of the Rules of professional responsibility if... (ABA Model Rules vs. CA Approach) |
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Definition
ABA: The violation raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer.
CA: Does not require external reporting, but a lawyer can be disciplined for doing nothing to prevent a colleague from violating the Rules and doing nothing at all to stop it.
Additionally, California requires a lawyer to self-report if he is charged with certain crimes involving moral turpitude or dishonesty, is found civilly liable for fraud or breach of fiduciary duty, disciplined in another jurisdiction, or sued for malpractice or sanctioned. |
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Term
| Requirements for a lawyer to fall within CA's multi-jurisdictional practice allowance: |
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Definition
| Structures it rule governing out of state lawyers by practice area and typically requires the lawyer to register within the state, pay dues, get continuing legal education, AND be subject to CA ethics rules. |
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Term
| If a lawyer’s superior orders a subordinate lawyer to do something that is a violation of his/her professional responsibility, and the lawyer does what he or she is asked, can he/she be disciplined? |
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Definition
If the thing the lawyer was asked to do was a CLEAR VIOLATION, then the lawyer is subject to discipline.
If the thing the lawyer was asked to do was DEBATABLY an ethical violation, then only the lawyer’s supervisor can be disciplined. |
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Term
| When is a supervising attorney responsible for the ethical violations of his subordinates? |
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Definition
| If he ratifies their actions or knew of the conduct and failed to take action. However, the lawyer must make reasonable efforts to ensure that everyone’s conduct within a firm comports with the professional obligations of a lawyer, including any non-lawyer assistants. |
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