Term
| Commercial speech prohibited if it is _________, and may only be limited by regulations that... |
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Definition
false and misleading
1) serve a substantial government interest
2) directly and materially advance that interest, and
3) are narrowly tailored to serve the substantial interest |
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Term
| A communication re advertising is false and misleading if it.... |
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Definition
1) contrains a material misrepresentation of law or fact, or
2) omits information that is necessary to make the communication as a whole not materially misleading |
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Term
| A CA lawyer is prohibited by statute from making advertisements that contain: |
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Definition
1) a guarantee or warranty of the outcome of a case
2) words or symbols that suggest quick cash or a quick settlement
3) an impersonation of a lawyer or client without disclosing that it is an impersonation
4) a dramatization of an accident or other event without disclosing that it is a dramatization and
5) a contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that the fee arrangement |
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Term
| General rule for duty of confidentiality |
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Definition
| You can't reveal anything "related to the representation" of a client without her consent. The duty attaches as soon as information is acquired (before or after client relationship exists), and continues indefinitely (even after death or representation ends). The duty applies regardless of whether the client requests information be kept confidential. |
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Term
In CA, the following communications are presumed to be false or misleading unless the lawyer can prove otherwise:
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Definition
1) communication delivered to a potential client who is in the hospital or who is suffering from physical or mental stress
2) mailings that seek fee-paying work and that are not clearly labeled as ads
3) communications containing testimonials or endorsements without a disclaimer that thy are not a promise about the results in a potential client's case |
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Term
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Definition
Clients Love Fierce Counsel
Confidentiality
Loyalty
Financial Responsibility
Competence
(and other reasonable things...) |
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Term
| Duties owed to entities other than your client |
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Definition
Courts Feel Differently
Candor / Truthfulness (owed to Court)
Fairness (owed to adversaries - parties and their counsel)
Dignity / Decorum (owed to legal profession)
and other reasonable things |
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Term
| Exceptions to duty of confidentiality (short) |
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Definition
Consent
Defending yourself
Compelled |
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Term
| Exceptions to duty of confidentiality (long) |
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Definition
Consent - if the client consents after consultation, a lawyer can otherwise reveal confidential information
Defending yourself - can reveal information to establish a claim or defense
Compelled - by court order, law, or other ethical duties (preventing death or substantial bodily harm, fraud or financial crimes where lawyer's services were used under ABA [NOT CA]) |
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Term
| CA rule for preventing death or substantial bodily harm using confidential information |
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Definition
If reasonable under the circumstance, you must first
1) make a good-faith effort to persuade client not to commit act, and
2) inform the client of your decision to reveal his confidences |
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Term
| ABA and CA rule for preventing fraud or financial crimes using confidential information |
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Definition
ABA: can use information if client used your services to commit the crime, AND the disclosure would prevent or mitigate substantial financial loss
CA: no exception |
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Term
| Definition of concurrent conflict of interest |
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Definition
A concurrent conflict of interest exists if:
1) representation of one client will be directly adverse to another client, OR
2) there is a significant risk that the representation of one or more clients will be materially limited because of the lawyer's responsibilities to another client, former client, 3rd party, or personal interest of the lawyer |
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Term
| Rule for considering concurrent conflicts when taking on a client |
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Definition
The lawyer must not take on representation unless:
1) the lawyer reasonably believe he can provide diligent and competent representation of each affected client
2) the representation is not prohibited by law
3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal
4) each client gives informed consent, confirmed in writing |
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Term
| Rule for when conflicts are imputed to firm |
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Definition
Where
1) the interests are materially adverse to former client, AND
2) lawyer has acquired information protected by confidentiality |
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Term
| Exception regarding ignorance of concurrent conflicts |
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Definition
| Short term legal services - you are ordinarily responsible for conflicts about which you are ignorant. However, under a court, agency, or non-profit program, you are responsible only if you know the representation involves a conflict |
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Term
| CA exception to concurrent conflicts for insurance company |
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Definition
| You can represent a policyholder and his insurance company as joint clients, where the insurer's interest in each matter is only as an indemnity provider (providing insurance for underlying client) |
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Term
| An attorney shall not enter into business representation with a client unless... |
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Definition
First Discuss Over Coffee
1) fair and reasonable terms
2) disclosed in a writing that is understandable
3) opportunity is given for client to consult outside lawyer
4) consent - written consent provided by client |
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Term
| Rule for publication rights contracts (ABA and CA) |
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Definition
ABA: Not allowed before representation has ended
CA: contracts may be tolerated if judge is satisfied that client clearly understands and consents |
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Term
| ABA Rule for financial assistance to client |
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Definition
A lawyer can advance: (indigent, contingent)
1) litigation expenses and court costs when representing an indigent, and
2) litigation expenses in contingent fee cases |
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Term
| CA rule for financial assistance to your client |
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Definition
| You cannot promise to pay prospective client' debts, but allows loans for all matters (including non-litigation matters) if there is a written IOU |
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Term
| ABA and CA rule for attorney acting as trial counsel and witness |
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Definition
ABA: you cannot serve as counsel and witness in the same trial unless
1) your appearance won't prejudice the client, and
2a) your testimony is uncontested or regarding the nature and value of services rendered, OR
2b) withdrawal would impose substantial hardship on client
CA: cannot testify in jury trials without client's consent |
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Term
| Rule for representation of new client whose matter is related to former client |
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Definition
You cannot represent a client on a substantially related matter with an interest that is is materially adverse to a former client unless the former client gives informed consent, in writing.
CA: must get informed consent in writing from former client, standard is that a disinterested lawyer would have agreed to the representation |
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Term
| Rule for screening conflicts in joining new firm |
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Definition
Conflicts will not extend to colleagues in new firm if you:
1) are screened timely and effectively
2) receive no direct part of the fee
and your former client receives:
3) notice, and
4) periodic certifications of compliance with these conditions |
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Term
| Rule for imputed conflicts of government lawyer who later employed by private sector |
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Definition
| Lawyer in private practice is not permitted to participate in a matter which he performed PERSONALLY and SUBSTANTIALLY while in government service |
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Term
| Imputed disqualification of government lawyer who later employed by private sector |
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Definition
| Other members of firm can represent in conflicted matter if lawyer in private practice is screened, not share in fee for matter, and the government employer is informed. |
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Term
| Rule for third party payer |
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Definition
it is impermissible to have a third party payer UNLESS:
o client consents AFTER consultation AND disclosure,
o there is NO interference with the lawyer’s independent professional judgment, AND
o all information obtained from client is protected by the rules governing confidentiality |
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Term
| Rule for reporting violations of securities laws |
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Definition
| You must report violations to CEO or head legal counsel, and then report out to SEC if necessary to prevent fraud, perjury, or substantial injury to investors |
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Term
| ABA and CA rule for fee agreements |
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Definition
ABA: fee agreements must contain
1) how fee is calculated,
2) what services are covered, and
3) the lawyer and client's duties
CA additionally requires: agreement be in writing, UNLESS
i) fee is under $1000
ii) fee is with a corporate client
iii) fee is for routine services for a regular client, or
iv) matter is an emergency or impractical to draft agmt |
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Term
| ABA and CA rules contingency fee agreement |
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Definition
Writing must indicate
1) how the fee is calculated
2) what expenses, if any, will be deducted and what they are liable for
3) when expenses will be deducted (gross or net)?
CA - additionally requires that agreement state that fee is negotiable |
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Term
| ABA and CA rules for when contingency fee NOT allowed |
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Definition
ABA: criminal representation, domestic relations
CA: criminal representation, contingent fee divorces OK if "fee arrangement won't encourage breakup of otherwise savable marriage" |
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Term
| ABA and CA standards for fees being too high |
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Definition
ABA - the fee charged by an attorney must be reasonable in terms of the time, labor, degree of difficulty of the tasks, legal skill involved, duration of representation, and whether or not the fee is customary within the venue for similar work. In addition, an attorney may not charge for time necessary to become familiar with a new area of law.
CA - fees must not be unconscionably high |
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Term
| ABA and CA rule for fee splitting with lawyers |
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Definition
splits with lawyers must be:
1) proportional to work done
2) the client must be advised and does not object, AND
3) the total fees must be reasonable
CA adds: 1) written disclosure AND consent, and 2) total fees can't be unconscionable |
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Term
| Rule for sharing fee with non-lawyers |
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Definition
There is no sharing of fees with non-lawyers, except
1) death benefits paid to a deceased lawyer's estate
2) salaries and pensions of non-lawyer employees |
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Term
| ABA rule for referral services |
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Definition
A lawyer shall not give anything of value to a person for recommending the lawyer's services except that a lawyer may
1) pay the usual charges of a legal service plan or a not-for-profit or qualified lawyer referral service approved by a proper regulatory authority
2) refer clients to another lawyer or a nonlawyer professional under an agreement, if
(a) the reciprocal referral agreement is not exclusive, and
(b) the client is informed of the existence and nature of the agreement. |
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Term
| Rules for keeping client funds |
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Definition
| Client funds must be kept in a trust account that is separate from and not commingled with the lawyer's personal account. If a dispute arises, a lawyer must withhold the disputed funds in the client trust account until resolution of the claim. |
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Term
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Definition
| Lawyers must keep good accounting records for the client, including notifying him of money received and paying out this money promptly. |
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Term
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Definition
| An attorney must have the requisite knowledge and skill in a particular area if he is to represent a client in that area. If he lacks this, he may associate with other counsel who has established competence in the field in question |
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Term
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Definition
| A lawyer may only accept cases he is competent to handle or if he can gain the necessary knowledge through reasonable research or assistance from another attorney without undue expense and delay to the client. |
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Term
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Definition
| A lawyer has a duty to keep his client informed about the case including settlement offers, and explaining matters to the extent necessary to the client so that he understands his choices. |
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Term
| Rule for scope of representation |
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Definition
| An lawyer shall abide by the client's objectives and consult on the means to achieve those objectives. A lawyer shall abide by a client's decision to settle, accept a plea bargain, or testify at trial |
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Term
| Rule for mandatory withdrawal |
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Definition
Withdrawal is mandatory where a lawyer is
o (1) discharged by client,
o (2) has a physical or mental impairment that adversely affects his representation of the client,
o (3) where continued representation will result in violation of a model rule or law |
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Term
| Rule for permissive withdrawal |
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Definition
A lawyer may permissively withdraw from a case if he can convince the court:
1) there is good cause, and
2) the withdrawal will not cause undue delay or disruption |
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Term
| ABA and CA rule for withdrawing because of fraud or illegal acts |
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Definition
| ABA and CA - attorney must first urge the client to rectify, and then withdraw if he refuses |
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Term
| Rule for withdrawal and sex |
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Definition
ABA - must withdraw if sexual relations w/ client
CA – withdraw only if sexual relations impair professional judgment |
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Term
| Rules for truthfulness of attorney advertising |
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Definition
| Attorney advertising must not mislead or omit material information, such as details of contingent fees. CA also prohibits any guarantees of a particular result or predictions. |
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Term
| Rules for solicitation by mail |
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Definition
| Solicitation by mail is permissible as long as it clearly labeled as an "advertisement" on letter and envelope. However, in CA communications to a potential client that a lawyer knows is physically or emotionally vulnerable is NOT allowed. |
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Term
| Rule for solicitation in person (direct contact) |
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Definition
| In person or life solicitation for profit is generally unethical AND impermissible. Sending a runner to a hospital is also generally not allowed. |
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Term
| Rule for duties to clients at former firm |
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Definition
A lawyer shall not knowingly represent a person in the same or substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client:
1) whose interests are materially adverse to that person, and
2) about whom the lawyer had acquired confidential information that is material to the matter |
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Term
| Rule for use of confidential information from client at former form |
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Definition
A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client shall not thereafter:
1) use information relating to the representation to the disadvantage of the former client (except for when information is public)
2) reveal information relating to the representation except as these rules would permit or require with respect to a client |
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Term
| ABA and CA rule for limiting malpractice |
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Definition
ABA - no agreements limiting malpractice liability allowed, unless client is given opportunity to consult with independent counsel
CA - no agreements limiting malpractice allowed, period |
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Term
| ABA and CA duty of candor in statements to tribunal |
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Definition
An attorney shall not
1) make a false statement of material fact or law
2) fail to disclose legal authority in the controlling jurisdiction known to be directly adverse to position of client and not disclosed by opposing counsel |
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Term
| What to do when client plans to make false statement at trial (commit perjury) (both ABA and CA in general) |
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Definition
1) counsel client not to testify (advise of 5th Am right not to incriminate, and penalties of perjury)
2) attempt to withdraw (because you will be violating model rules) |
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Term
| ABA - How to interact with tribunal if client still wants to commit perjury after advising him |
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Definition
| ABA - if withdrawal will not undo the bad effects of the perjury, you can breach confidentiality and tell the judge |
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Term
| CA - how to interact with tribunal if you can't withdraw and client still wants to commit perjury |
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Definition
CA:
1) do not do anything to further deception
2) allow client to give testimony as narrative - do not ask questions or assist
3) omit references to the perjured testimony in trial and in closing argument |
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Term
| CA rule regarding producing evidence of crime (and confidentiality) |
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Definition
| An attorney must produce physical evidence of instrumentality of a crime to the police, but still must keep information related to the evidence confidential ("I used this gun to kill my father") |
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Term
| Duty of fairness and candor to opposing counsel |
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Definition
Lawyer generally has a duty of candor and fairness to opposing counsel, meaning:
In dealing with opposing counsel, lawyer has a duty to:
NOT obstruct evidence
Not make frivolous requests to testify |
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Term
| Special duty of prosecutor regarding evidence |
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Definition
| Prosecutors have a special duty to timely disclose evidence favorable to the defendant |
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Term
| Duty to return documents sent inadvertently |
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Definition
| A lawyer must immediately return confidential documents sent inadvertently or left inadvertently |
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Term
| Rule regarding truthfulness and respect to third parties |
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Definition
| When speaking with third parties, you must not make a false state or omission (unless relating to confidential information). You should also not embarass, delay, burden, or violate the legal rights of that person. |
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Term
| General rule for communication with represented persons |
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Definition
| Unless authorized by law, a lawyer must not communicate about the subject of a representation with a person the lawyer KNOWS is represented by counsel unless their counsel consents in writing |
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Term
| CA rule for communication with represented persons |
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Definition
Lawyer cannot communicate with "party" without lawyer consent. "Party" includes:
1) officer, directors, or managers of corporation
2) an employee of a corporation employed @ the time of communication if the subject of the communication is an act or omission that will be binding or imputed to the corporation
NOTE: rule does not prohibit communications with board officer, or party seeking advice from independent lawyer |
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Term
| Rule for communication with unrepresented persons |
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Definition
A lawyer cannot imply impartiality
A lawyer must say who he represents
A lawyer cannot give legal advice to the unrepresented party
A lawyer can only advise the unrepresented party to seek counsel |
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Term
| Rule for dealing with jurors |
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Definition
| Cannot talk to actual or prospective juror before or during trial. After trial is over, you can interview them if local law permits. In CA, they have a right to refuse an interview and to have a copy of the resulting court declaration |
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Term
| Rule for out of state lawyer (multi-jurisdictional practice) |
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Definition
Lawyer may temporarily provide legal services if:
1) he is in association with a locally licensed lawyer who actively participates
2) he is authorized by law or ordered to appear
3) reasonably related to lawyer's practice and forum does not require pro hac vice admission
NOTE: CA requires lawyers to register with bar, pay dues, take CLEs, be subject to ethics rules |
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Term
| ABA and CA rule for reporting violations of rules |
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Definition
ABA - required to report rules to appropriate professional authority if it raises substantial question regarding honesty, trustworthiness, or fitness
CA - no external reporting required, but lawyer can be disciplined for knowing about a fellow member's violation and doing nothing to prevent it. Also requires self-reporting of felony, fraud, breach of fiduciary duty, being sanctioned. |
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Term
| Responsibilities of subordinate lawyer |
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Definition
| A lawyer is bound by the rules of professional conduct if they are acting at the direction of another person, but a subordinate lawyer does not violate the rules of professional conduct if that lawyer acts in accordance with a supervisory lawyer's reasonable resolution of an arguable question of professional duty. |
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Term
| CA differences for consent to concurrent conflicts |
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Definition
CA RPC:
1) does not contain a "reasonable lawyer" standard
2) it applies to potential AND actual concurrent client conflicts
3) it requires "written disclosure" (as opposed to informed, written consent) when the conflict arises out of prior relationships or personal interests |
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Term
| CA rule for employment of disbarred attorney |
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Definition
In California, an attorney may employ a disbarred attorney to perform research, drafting or clerical activities, including but not limited to legal work of a preparatory nature, such as legal research, drafting of pleadings, briefs, and other similar documents.
The disbarred member may have direct communication with the client regarding matters such as scheduling, billing, updates, confirmation of receipt or sending of correspondence and messages.
Written notice of such must be given to both the California State Bar and to each client upon whose matter the subject attorney will perform work. |
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Term
| CA and ABA rule for unauthorized practice of law |
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Definition
| An attorney must not aid any person in the unauthorized practice of law |
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Term
| Rule for lawyer delegating tasks to non-lawyers |
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Definition
| ABA and CA rules state that a lawyer can delegate tasks to a paralegal as long as those tasks are supervised carefully. The lawyer must ultimately be responsible for those tasks. |
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Term
| ABA and CA rule for trial publicity (statements) |
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Definition
A lawyer must ot make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and have a substantial likelihood of materially prejudicing an adjudicative proceeding.
However, a lawyer may make a statement that a reasonable lawyer would believe is not required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or her client |
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Term
| CA rule for threatening criminal, administrative, or disciplinary charges |
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Definition
| A member of the bar shall not threaten to present criminal, adjudicative, or disciplinary charges to obtain an advantage in a civil dispute |
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Term
| ABA rule for fairness to opposing party and counsel (evidence) |
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Definition
A lawyer shall not
1) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value
2) falsify evidence
3) knowingly disobey an obligation under the federal rules |
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Term
| CA rule for suppression of evidence |
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Definition
| A member shall not suppress any evidence that the member of the member's client has a legal obligation to reveal or produce |
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Term
| ABA rule for fairness to opposing party and counsel (discovery) |
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Definition
A lawyer shall not:
1) make frivolous discovery requests or fail to make reasonably diligent efforts to comply with proper discovery requests by an opposing party
2) request that a person other than a client refrain from voluntarily giving relevant information to another party unless
1) the person is a relative or an employee or other agent of a client, and
2) the lawyer reasonably believes that the person's interests will not be adversely affected by refraining from giving such information |
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Term
| ABA rule for fairness to opposing party and counsel (trial) |
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Definition
A lawyer shall not, in trial,
1) allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or
2) state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused |
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