Term
1-200: “False Statement Regarding Admission to the State Bar” |
|
Definition
- a member shall not make false statements re a material fact or fail to disclose such (false statement) - a member shall not further someone else’s application whom they know to be unqualified (furthering) - the rule shall not prevent a member from serving as counsel of record in a bar admission proceeding |
|
|
Term
1-300: “Unauthorized Practice of Law |
|
Definition
- a member shall not aid any person in the unauthorized practice (aid) - a member shall not practice in a jx where it would be a violation to do so (extra-jx) |
|
|
Term
6126: “Unauthorized Practice, or Attempted Practice; Advertising of Holding Out; Penalties” |
|
Definition
- unauthorized practice of law or advertisement of being authorized is a criminal offense (holding out) - anyone who has been disbarred, suspended, or made involuntarily inactive and thereafter tries to practice law is guilty of a criminal offense (disbarred & practicing) - willful failure to comply with an order to comply with Rule 955, whatever that is, is guilty of a crime - the penalties are cumulative to one another and any other penalties provided elsewhere |
|
|
Term
Most Common Violations of CRPC |
|
Definition
o Failing to pay dues o Failing to complete MCLE o Failure to communicate with clients: probably the number one complaint o Failure to manage client accounts o Substance abuse |
|
|
Term
6068(a)-(h). The various duties of an attorney. |
|
Definition
- (a) Support constitution and laws - (b) Due respect to the court and its officers - (c) Maintain actions that are legal or just - (d) Means that are consistent with truth - (e) Preserve the client’s secrets - (f) No fact prejudicial to a party or witness - (g) No motive corrupt of passion or interest - (h) Never reject the defenseless or oppressed |
|
|
Term
California Law on avoiding Frivolous Cases |
|
Definition
CPRC 3-700(b)(1) requires lawyer to withdraw from frivolous cases. Malice AND probable cause are required. |
|
|
Term
The End of the Attorney Client Relationship |
|
Definition
- Must leave client in as good a position as possible. MR 1.16(d) and comment 9; CRPC 3-700(a)(2), 3-700(d) and discussion - You must get court permission. 3-700(a)(1) |
|
|
Term
Prohibition of Solicitation - CBPCs |
|
Definition
CBPCs o You can’t send a runner or capper into hospitals, prisons, jails, courts, etc. o A release of liability is presumed fraudulent if executed by a person in inpatient or outpatient care within the first 15 days of that care, or prior to release from confinement o You can still advertise, especially to the indigent |
|
|
Term
Advertising and Solicitation - 1-400 |
|
Definition
The rule creates a number of rebuttable presumptions. In general, remember the following principles: - Ads cannot be false or misleading = material misrepresentation - States can regulate, but not ban. Went For It. - Cannot create unjustified expectations, unverifiable comparisons - No consideration for recommending services, exc. costs of ads, referral fees, quid pro quo |
|
|
Term
|
Definition
- In-person solicitation, unless it's a lawyer or there's a familial/close relationship - Even in these situations, if there's duress, coercion, or harassment, then . . . - Parties already represented - Communications over the telephone, in person, electronic - Elements: INTENT PECUNIARY GAIN - See 1-400 |
|
|
Term
|
Definition
Financial Arrangements: L shouldn’t divide their fee unless the client consents, or the total bill won’t go up because of the division and isn’t unconscionable. Ls shouldn't compensate one another for referrals. Conflicting Rep.: accept compensation for representing a client “from one other than the client” unless there’s no interference with the lawyer’s independence, the CL rel., and there's IC. Preservation of C Prop: keep client funds in trust; notify client upon receipt of funds; deliver funds on request Fees: no unconscionable or illegal fees. Factors? Amount of the fee, sophistication of the client, difficulty of the case, the likelihood that the case will preclude other employment, time limitations, the nature of the CL relationship, experience of the lawyer, whether the fee is fixed or contingent, and informed consent of the client to the fee. Formal Opinion: no double billing, no overhead without advance disclosure, duties of competence, loyalty, communication.
|
|
|
Term
|
Definition
6147: Writing req'd Rules: must be reasonable, clients must be notified of liability for costs, no divorce or crim cases, risk makes relatively large fee reasonable |
|
|
Term
Liens, loans, and financial assistance to clients |
|
Definition
Liens: you may acquire one to get your fee. Loans: AFTER your employment, you may lend money to clients. 4-210. Assistance: only costs and expenses of litigation; in CA you can also pay out of money collected on client's behalf. |
|
|
Term
|
Definition
Competence Loyalty - control of goals in rep is client's. Diligence - zealous advocacy Communication - in CA, you must communicate all settlement offers in crim cases, written settlement offers, significant verbal offers |
|
|
Term
Confidentiality in California |
|
Definition
You have a duty to preserve a client's "confidences and secrets" (in MR it's 'related to rep.'). See CBPC 6068. No aff. obligation to reveal confidential information; instead attempt to persuade client, then inform of ability and decision to disclose.
Exceptions: - Crime Fraud Exception - lawyer's services cannot be used for crime (still no obligation)
- Necessary to prevent a crim. act that L believes will result in death or harm. CRPC 3-100.
|
|
|
Term
|
Definition
- (A) lawyer shall be truthful - (B) shall not misguide or make a false statement - (C) shall not intentionally misquote - (D) shall not cite invalid decision/statute as valid - (E) shall not assert personal knowledge of facts at issue, except when testifying |
|
|
Term
Communication with Represented Party - 2-100 |
|
Definition
You cannot communicate about the subject of a matter with someone you know is represented by someone else. A "party" may be: - Company officer
- Association member, or employee, if the subject of the communication is an act of that person that may be binding on the org.
Not prohibited: communications with public officer/body, those initiated by someone seeking representation. No consent required to speak with a former employee. |
|
|
Term
Other Sensitive Communications |
|
Definition
- Publicity: do not say anything that would prejudice a proceeding. You can say what the claim is, give identities of people involved, etc.
- Do not testify in a case you're handling, unless it's uncontested, relates to your services, or IC
- Evidence: do not suppress evid. you're obliged to produce
- Contact w/officials (and staff): don't give anything of value to a judge; don't talk to them about the merits unless it's in open court, all other counsel are present, or exparte with consent sought in writing.
- Witnesses: don't tell anyone to flee the jx, nor pay a witness, unless it's reimb./comp.
- Jurors: don't talk to them, don't harass them or their families, report their improper conduct.
|
|
|
Term
California Bias Rule - 2-400 |
|
Definition
A law practice/lawyer shall not discriminate unlawfully in hiring & firing or otherwise determining "conditions of employment", an extremely broad category. The same rule applies to accepting or rejecting clients. No discipline unless and until an agency (EEOC) determines discrimination occurred. |
|
|
Term
Conflicts in CA: legal, business, personal, etc. relationships - 3-310(B)
|
|
Definition
Don't accept or continue with a client without disclosure where: - you have a legal, business, or personal relationship with a party or witness in the same matter
- you know or should know of a previous such relationship, and it would subs. affect your representation of the client.
- you have or had a rel. with a person subs. affected by the resolution of the matter
- you have or had a legal, business, or personal interest in its resolution
|
|
|
Term
Conflicts in CA: Multiple Clients - 3-310(C) & (D) |
|
Definition
Do not, without IC: - represent more than one client in a matter where their interests may conflict
- accept or continue rep. of more than one client where their interests do conflict
- represent people in separate matters whose interest conflict in one matter or the other (concurrent adverse relationship)
- if you represent two or more clients, do not enter into an aggregate settlement for or against
|
|
|
Term
3-310(E): Conflicts occasioned by previous representation |
|
Definition
Cho and Rosenfeld covered this issue: if a substantial relationship is shown between former and current rep., and that former rep. was such that confidential information would have been shared, then knowledge of conf. info is presumed. That's a conflict. Substantial relatedness: - factual similarity
- legal similarity
- nature and extent of atty involvement
|
|
|
Term
CRPC 3-300: Avoiding Interests Adverse to a Client |
|
Definition
Don’t enter into a business transaction with a client, or knowingly acquire an interest in something that’s adverse to the client, unless you meet the following conditions: - (A) the transaction is fair, disclosed, and comprehensible to the client - (B) client is advised in writing that she may get another lawyer to review it - (C) client thereafter consents in writing |
|
|
Term
|
Definition
CRPC 1-120: attorney cannot knowingly assist, solicit, or induce another’s violations. No vicarious liability under these rules. But CRPC 3-110 requires competence in supervising subordinates. There is no obligation to report in CA. |
|
|
Term
|
Definition
"Solicitation" is a communication delivered in person, over the phone, or directed by any means to a person who knows it concerns availability of the lawyer. A "solicitation" shall not be made to a prospective client who isn't in a prior relationship with the lawyer. Banned solicitations: - untrue
- deceitful or misleading
- omits to state something to prevent it from being misleading
- fails to be clear that it's a solicitation
- coercive
See the presumptions in 1-400(E) |
|
|
Term
Mandatory Withdrawal - 3-700(B) |
|
Definition
[Specific info on other cards] You must withdraw if: - The client is using your services for a frivolous action (remember Malice AND lack of probable cause) - Continued representation will lead to violation of the rules - Your mental/physical condition is such that you can't continue |
|
|
Term
Permissive Withdrawal - 3-700(C) |
|
Definition
You may, but don't have to withdraw, when: - client insists upon a silly claim or defense
- client wants to pursue an illegal course of action
- client makes it difficult to carry out employment
- client doesn't pay you
Other causes: inability to work with co-counsel, continuing will likely result in violations of rules, client assents, etc. |
|
|
