PR

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Author:
lonio89
ID:
305633
Filename:
PR
Updated:
2015-07-23 22:50:25
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Professional Responsibility law
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Professional Responsibility bar study cards
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  1. Duty to Client [CLFC]

    Confidentiality
       GR
       Exceptions [FLACCD]
          CA +2
       Scope
    • Confidentiality - Under the ABA & CA, a L may not reveal any information obtained from client in the course of representation intended to be kept confidential w/o client consent. 
    •    ABA - continuing duty to preserve indefinitely 
    •    CA - L duty to maintain inviolate client confidences 

    • Exceptions
    • Fraud/sub'l financial loss 
    •    CA - NO financial exception 
    • Lawyer's claim/defense
    • Advice (legal ethics advice)
    • Req'd by Court 
    • Consent
    • Death/serious bodily harm
    •    CA - must first 1) make good faith effort to persuade CL not to commit act, and 2) inform of decision to reveal; then L may reveal
    • Scope - conf'dtl communic w/CL + all info re: representation, regardless of source
  2. Duty to Client

    Confidentiality 
    Att'y-Client Privilege
       ABA
       CA
       Corporations
       Exceptions [5+ CA]
    • Att-Cl Priv - protects disclosure of any comm'n related to A/C relationship, legal svcs, but not biz tactics; CL is holder & includes made thru/in presence of agents
    •    ABA - A/C priv continues indefinitely
    •    CA - terminates when dec'dt client's estate settles &  personal rep discharged
    • Corporations - priv applies to comm'n w/ 1)atty & high-rank officials, 2) other corp empee, if: w/in scope of emp'mt, made @ direct of emp'ee's superior & emp'ee knows comm'n to assist corp
    • exceptions
    •   crime/fraud
    •    re: issue of breach in A/C relationship
    •    civ litigation btwn former joint clients
    •    validity of deed/will
    •    competency/intent of deceased client
    •    CA - prevent death/sub'tl bodily injury - atty may disclose
  3. Duty to Client

    Loyalty
    GR
    Conflicts of Interest
       Actual [COPI]
       Potential
    Imputed disqualification
       Except (3 + CA)
    Remedies
    • GR - under ABA & CA, L owes DOL to act solely to further client's best interest & must not sacrifice cl's interest for his own or those of a 3d party. 
    • COI
    •   Actual - when interest materially limits/adverse to loyal rep
    •      Clients - rep can't involve claim of 1 cl against another 
    •           CA - unless joint clients = ins provider & insured (but pot'l COI might force withd)
    •      Objectively reasonable
    •      Prohibited by law
    •      Informed written Consent
    •   Potential - when L suspects actual COI may exist, but rep not yet materially limited

    • Imputed DQ - COI imputed to entire firm, except: gov't service, personal interest, private but screened
    •     CA - atty imputed, may be disqualified from rep; screening ok if: timely, no fee shared, written notice to any affected former client, periodic certs of compliance
    • remedies - refuse take case, advise multi clients get sep counsel, or withdrawal
  4. Duty to Client

    Loyalty
    COI
    Between current clients
       GR
       Exceptions
    w/former clients
       GR
       Type of work
    • btwn current CLs - may rep CLs w/potential conflicts w/proper consent, MUST NOT if directly adverse to cl or rep materially limited
    • Except - reasonable belief can give competent & diligent rep to all; not prohibited by law; not 1 cl v another; informed written consent

    • w/former CLs - gen, L who has formerly rep'd cl in matter NO rep new cl in same/sub'tly related matter, where new CL's interests materially adverse to former UNLESS former CL gives informed written consent
    • Type of work
    •    limited Pship - likely ok
    •    leaving firm - imputed DQ if sub'tly related/same & any remaining L has confidential info
    •    Former gov't L - NO later rep CL in connect w/matter in which participated personally & sub'tly as gov't agent
    •         CA - bars pros from later working on defense of same case in private practice
  5. Duty to Client

    Loyalty
    COI
    Specific Conflicts
       L biz txn w/client
       Solicit gifts
       financial assistance to CL
         CA
       3d party pay bill for CL
       malpractice
       sex w/CL 
          CA
       Aggregate settlement/guilty plea
    organizational conflicts
    • L biz txn w/client - NO, unless fair & reasonable, fully disclose to CL in writing, CL recommended to seek ind'pt counsel & infm'd consent in writing
    • Solicit gifts - NO, unless family
    • financial assistance to CL - NO except advance litigation costs (repay can be conting on outcome) or indigent CL
    •    CA - NO direct/indirect pay personal/biz expense of CL
    • 3d party pay bill for CL - NO unless infm'd consent (CA - writing), no interfere in rel'tnship & info re: client protected
    • malpractice - NO limit malpractice unless cl indp't rep in make waiver
    • sex w/CL - NO unless b4 rep
    •    CA - OK as long as not a cond'tn to rep, coerce, intimidation, & on cause L perform incompetently
    • Aggregate settlement/guilty plea - NO, unless all infm'd written consent
    • organizational conflicts 
    •    Org CL - rep org, not emp'ees
    •    Misconduct - if L knows O/emp'ee violate law & likely cause sub'tl injury to co, MUST report up & MAY report out
    •         CA - L MAY report up, but CANNOT report out (only option - withdraw)
  6. Duty to Client

    Financial Responsibility
    GR
       CA - fees
       7 factors
       CA - writing req't 
           Except
    Contingent Fees
        CA +
        NOT allowed
    Fee splitting
       same firm
       out of firm 
            CA
       w/non-lawyer
    referral fees
       Except
       CA
    protecting client prop
    • GR - L must not charge fees unreasonable under the circumstances [CA- not unconscionable]
    • 7 factors - time/labor; preclude other empmt; customary fee; amt involve & result; time limit; nature & length of reltn; experience, rep & ability of L; if fixed/contingent
    • CA writing req't - reason foresee total expense to cl >$1k, must be in writing [inc basis of compen, nature of svcs, k responsib of L & cl]
    •     except - CL=corp; Cl writing waive writing; emergency; impracticable; arrng'mt re: fee imp'd by previous dealings

    • Conting't - written agmt signed by cl & have att'y %, expense deduct frm recovery & if % taken b4 or after expenses
    •     CA - + how work not covered by conting fee paid & fee negotiable 
    •    NO in: crim case, divorce, alimony/support, property settlement

    • fee split - same firm - OK
    • Out of firm - OK if proportionate to svcs & cl gave infmt written consent & reasonable 
    •     CA - NO, unless cl infm't writ consent & not unconscionable 
    • w/non-L - NO, unless emp'ee in pension plan, estate of deceased L, ct award fees w/non-prof that emp'd/recommended L

    • Referral fees - NO; except: cost ads, legal svc/non-profit/qualified referral svc
    •    CA - ok, as long as meet CA req'ts for split
    •    reciprocal agmt - OK if not exclusive & CL infm'd of exist & nature

    • protect CL prop
    •    duty not to commingle; safeguard CL prop; keep good records [retain: ABA - 5 yrs after termn of rep; CA - 5 yrs after final distrib of funds/prop]
  7. Duty to Client

    Competence
    GR
    Duty of Communication
    Duty of Diligence
    Effective Assistance of Counsel
    Withdrawal
      mandatory
      permissive
      procedure
    Duty of Competence - L owes duty of comp'tce that requires legal knowledge, skill, thoroughness & prep reason nec'y for rep. If don't know law, can't take unless learn w/o undue expense/delay to CL or associate w/competent L

    Communication - keep CL informed, inc ALL settle offers & return calls/emails [L decides procedural/legal strategy; CL decide sub'tive rts & critical stages: settle offers, appeals, expenses, witnesses, plea/jury trial/testify]

    Diligence - diligently, promptly & zealously advocate 

    Effective assist - 6th A - gen presume, but can rebut if: L's conduct fell below prfmce ordinarily expect & affected outcome of trial 

    • Withdrawal
    •   Mandatory - result in vio of PR/law; L's phys/mental cond'tn impair ability, discharge
    •   permissive - CL fail sub'tly to fulfill obligation to L & given reasonable warning; CL use L commit crime/fraud; CL insist on objective repugnant to L (or fund'tl disagmt)
    •   Procedure 
    •     time/reason notice to cl; time/oppty to get another L
    •     return all L's fees not used, earn, expended
    •           CA - NO app'y to true retainer fee
    •     return all papers CL entitled, L may retain papers re: cl to extent permitted by law
    •           CA - prompt release ALL papers & prop
  8. Duty to Ct [CFD]

    Candor/honesty

       Prevent Abuse of System

       Perjury
    • Duty of Candor
    •   Must not make false stmt of material fact/law
    •   Must disclose material fact to avoid assisting crime/fraud of CL
    •   Must not offer false evidence -> if find out later, take reasonable remedial measures:try convince CL to reveal, then try withdraw, or last resort, give enough info to ct to set straight 
    •   Must correct false stmt of material fact/law
    •   Must disclose adverse law on point frm controlling jxn
    •   Ex parte disclosure - in ex parte, L inform tribunal of all material facts

    • Prevent abuse of system
    •   NO frivolous claims/defenses UNLESS believe basis to bring not friv
    •   Avoid improper influence
    •   NO disruptive conduct b4 ct
    •   Duty to Expedite 

    • Perjury - no knowingly facilitate cl perj; if cl insists, try to withdraw
    •   Civ - L must refuse to call CL
    •   Crm - if know false, must: counsel cl not to take stand, try withdraw, disclose to ct
    •      CA - counsel, withdraw, if cant, L may ? in narrative fashion
  9. Duty to 3d Parties [CFD]

    Fairness to opposing party & counsel
      Access to evidence
      Trial tactics
      Communications w/others
         w/adversaries
         w/witnesses
         w/jurors
         w/press
      Prosecutor Duties
    • Access to Ev - cant mess w/ev (obstruct/destroy/alter) & NO frivolous discovery or fail to reasonably comply w/request
    • Trial tactics - EV rules - no allude to irrelev/inadmissible ev; NO tell 3d pty to refrain from vol give relevn't info (hush) unless 3dP is relative/emp'ee of CL & L belief interests not adversely affected

    • Comm'n w/adversaries - NO talk to indv know rep'd by another L (unless L consent/ct order)
    •   w/witnesses - MAY - contact all witnesses, pay expert wit reason fee; CANNOT - harass/pay wit on contingency basis
    •   w/jurors - b4 trial - NO; after - ok
    •   w/ct - NO ex parte unless emergency; NO gifts to ct personnel
    •   w/press - NO stmt public disseminated if sub'tl likely materially prejudice proceeding

    • Prosecutor duties
    •   Must have PC
    •   Timely disclose all potential exculpatory ev
    •   Ensure accused advised of rt counsel & reason opp'ty to get one
    •   NO seek waiver of rts of unrep person unless refuse L
    •   NO subpoena another L b4 grand jury/crm proceed unless - info not protect, ev essential to proceed & no alternative source
    •   NO public stmt w/sub'tl likely pub condemn of accused
    •   If new ev create reason likely D didn't commit crm convict for, Prosec must investigate & disclose to D & ct
  10. Duty to Profession/public [CFD]

    Profession - Dignity 
      Avoid unauthorized practice of law
         report violations
             CA
      Supervise

    Public - Dignity
      Avoid false/misleading Ads
           CA - rebut presumption (4)
           AD Requirements
               CA prohibit (5)
      No improper solicitation 
         NO (3)
         OK (4)
    • Avoid unauth practice of law - L must be licensed IN CA 
    •   Report violations - ethical duty to report serious violations of other Ls/judges EXCEPT privileged 
    •       CA - no snitch rule, but must self report
    • Supervise - subordinates; subordinate L duty to make independent judgment, EXCEPT may follow superior L on debatable ? of ethics if reasonable 

    • Avoid false/misleading ads - L ads recognized as commercial ads protected by 1st (via 14th); states can't just prohibit ad unless false/misleading 
    •   NO false/mislead stmt
    •      CA rebut presume misleading: 1) to potential CL still in hospital, 2) to potential CL suffer phys/mental stress; 3) have testimonial/endorsement w/o disclaimer; 4) letters seeking fee-pay work that isn't clearly labeled
    •   AD req'ts - name/add's of 1L, MUST be conspicuous by state "advertising material", may say certified specialist ONLY if cert by accepted body & body ID'd in comm'n
    •      CA prohibit: 1) guarantee/warranty of outcome, 2) anything suggest quick $/settle, 3) impersonation of L/cl w/o disclose; 4) dramatization w/o disclosure, 5) if conting fee where cl pays cost if loss, disclose

    • NO improper solicit 
    •   NO - 1) in person for profit, 2) solicit if know CL doesn't want or if coercion, duress, harass, 3) use runners/agents to solicit in prohib manner
    •    OK - 1) letter, as long as label ad, 2) email, 3) in person for free, 4) in person for profit if: another L, family, close friend, prior relationship

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