california bar exam lecture notes - professional responsibility

Bar Notes

Professional ResponsibilityI.THE APPLICABLE LAWA.General (OL I. A.)1.Model rules and California Rules of Professional Conduct (CRPC)

II.REGULATION OF THE LEGAL PROFESSION

A.Admission to the Bar (OL II. A.)1.Two Prohibitions

a.Model Rule 8.1 and CRPC 1-200 - On the application for admission to the bar, a lawyer is prohibited from:

(1)making a false statement of material fact

(2)knowingly failing to disclose material facts

B.Regulation After Admission (OL II. B.)1.Under California rules and Model Rule 8.4, it is professional misconduct for a lawyer to:

a.violate, attempt to violate, or assist others in violating the rules of professional conduct

b.commit criminal act that reflects adversely on honesty, trustworthiness, or fitness as a lawyer

c.dishonesty, fraud, deceit, misrepresentation

d. conduct prejudicial to the administration of justice

e. state or imply an ability to improperly influence

2.California replaces this detailed list:

prohibits acts of moral turpitude

Use the California language of moral turpitude and specify that it is prohibited by Model Rule 8.4.

HYPOTHETICAL

Lawyer passed the bar exam, but is not practicing as a lawyer. Instead, he is running a book store. He doesnt like law students shopping in his store, so when they make purchases, he overcharges their credit cards for more than the purchase price. Is this an ethics violation under the Model Rules? Under the CRPC?

Neither the MPRE nor CRPC limit ethics violations to acts committed as a lawyer. He is in trouble for violation of Model Rules 8.4 and under the CRPC, committing an act of moral turpitude by engaging in dishonesty and fraud.

III.LAW FIRMS AND ASSOCIATIONS

A.Similarities Between California and Model Rules1.Under both rules, attorneys must:

a.supervise their subordinates both lawyers and non lawyers

b.make reasonable effort to make sure that lawyers follow rules

EXAMPLE:Conflict of interest checks in law firms and calendaring systems for statutes of limitations.

Two common testing scenarios are: (i) where the subordinate lawyer makes a mistake; or (ii) where a supervising attorney tells the junior attorney to violate an ethics rule.

B.Vicarious Responsibility in Law Firms/Associations Between Lawyers (OL III. A.)

1.Managers

a.Three Key Terms

(1)Order supervisor orders the misconduct.

(2)Ratify supervisor finds out after the associate destroys the document

(3)Fail failure to take remedial actions

2.Subordinatesa.Lawyers are protected when following a supervisors directions only:

it is a reasonable resolution of an arguable question of professional duty. Also CRPC 1-120 requires that any ethical violation be knowingly made.

EXAMPLE:Supervisor tells you to lie in court. Not reasonable resolution. But if conflict of interest question, could be reasonable resolution, so protection.

C.Sale of Law Practice (OL III. B.)

1.A law practice may be sold provided that:

a.written notice to the client

b.clients retain confidentiality

c.fees to clients cannot increase due to sale of law practice

d.conflict of interest rules apply

IV.FINDING THE CLIENT AND ENTERING INTO A RELATIONSHIP WITH THE CLIENT

A.Getting the Client (OL IV. A.)1.Introduction

a.CRPC 1-400 corresponds primarily Model Rules 7.1 and 7.2. It contains no restrictions on type of media that can be used for lawyer advertising

2.Advertisinga.Prohibitions

(1)Cannot impersonate a lawyer

(2)Cannot guarantee the outcome of a case i.e. quick settlement or immediate cash

b.False and Misleading Statements(1)California and the Model Rules both prohibit a lawyer from:

Making false or misleading statements, which are statements that contain a material misrepresentation of law or fact, or omission of facts necessary to make the statement

considered as a whole not materially misleading

(a)The Model Rules additions:

The statement has to be material. CRPC 1-400 does not have a materiality requirement

(2)Considerations regarding false or misleading factual statements:

(a)must not contain an untrue statement

(b)must not contain matter that is false, deceptive, misleading

(c)must not omit necessary facts

(d)must not fail to indicate that it is a communication or solicitation

(d)must not be transmitted in a manner that involves intrusion, coercion, duress, intimidation, threats or harassment

c.Fields of Practice or Specialization(1)A lawyer can communicate that he does or does not practice in a field of law, but cannot state or imply that he is certified as a specialist in a certain field unless:

he has been certified as a specialist by an organization approved by the state or accredited

by the American Bar Association

d.Presumption of Violation(1)Certain communications are presumed to be in violation of CRPC 1-400, including communications that:

(a)contain guarantees, warranties, or predictions regarding results of the representation

(b)contain testimonials or endorsements regarding a lawyers services without disclaimers

(c)are in the form of a firm name, trade name that implies a relationship with a government agency or instrumentality

EXAMPLE:An group of attorneys cannot name their firm State of California Real Estate Attorneys, as this implies a relationship with the State of California.

(d)labeling: announcements need to bear the words advertisement, newsletter or similar words

[Referenced in video lecture as (e)]3.SolicitationsEXAMPLE:Ambulance chasing, or handing out business cards at the scene of an accident or at a hospital

a.A solicitation is any:

(1)communication concerning the availability for professional employment of a lawyer or law firm in which a significant motive is pecuniary gain and

(2)that is delivered in person or by phone, or directed by any means, to a person known to the sender to be represented by counsel in a matter that is a subject of the communication

b.Solicitation is permitted only:

(1)when person contacted is a lawyer OR

(2)for pro-bono representation as pecuniary gain is not a motive

EXAMPLE:A lawyer can seek to represent a client in a pro bono situation since there is no pecuniary gain.

c.The rules prohibit the employment of:

a prospective client who has indicated a desire not to be solicited or if doing so would involve coercion, duress or harassment

EXAMPLE:A lawyer cannot pay a dentist in the office next door a referral fee for sending the lawyer malpractice cases that the dentist comes upon.

4.Referrals/Group Legal Services

a.Lawyer Referrals

(1)CRPC 1-320(B) and Model Rule 7.2(b) prohibitions:

a lawyer from giving anything of value to a person for recommending a lawyers services with the exception of payment for reasonable advertising costs, usual charges for a legal service plan, payment of sale of law practice, referral f clients to another lawyer pursuant to agreement as long as agreement is not exclusive and client is aware of the agreement

B.Entering into a Relationship with the Client (OL IV. B.)1.Feesa.Amount(1)Under CRPC 4-200(A), a lawyer may not:

fees cannot be illegal or unconscionable. MPRE uses the language of unreasonable fees.(2)Factors to Consider to determine whether fee is unconscionable:(a)amount of fees must be in proportion to value of services performed

(b)relative sophistication of firm member and client

(c)novelty or difficulty of questions, skill involved

(d)likelihood that acceptance of employment would preclude other work

(e)amount involved and results obtained

(f)time limitations

(g)nature and length of relationship with client

(h)the experience, reputation, ability of firm member

(i)fixed or contingent fee

(j)time and labor required

(k)informed consent of client to the fee

Try to memorize all of these factors, but the facts should be such as to trigger specific red flags about specific things to consider.

b.Fee Agreement Writing Requirement

(1)Both rules require:

contingency fees to be in writing

(2)California also requires:

anytime fees and costs are likely to exceed $1000, it must be writing

c.Contingency Fees(1)Subject-Matter Prohibitions

(a)Under the Model Rules 1.5(d), you cannot have contingency fees for:

1)representing a defendant in a criminal cases

2)domestic relations, if fee is to secure a divorce, amount of alimony or support or property settlement. (2)The California rules do not prohibit:

contingency fees in domestic relations matters, criminal cases or other situations per sed.Billing(1)Billing must be clear on amount, rate and method of fee calculation

e.Retainer Fees(1)Cannot keep unearned fees but can keep true retainer fees

f.Recovery of Unpaid Fees(1)if fired, still entitled to recover legal feesException:

If lawyer QUITS, cannot recover legal fees.

g.Fee-Splitting(1)Model Rule 1.5(e) restricts division of fees unless:

(a)division is proportional to services performed

(b)client agrees in writing

(c)fee is reasonable

(2)While California does not require proportionality, the client must:

consent in writing to the division and overall fee is not increased solely due to division

HYPOTHETICAL

You recently start up a practice in Los Angeles, and one of your law school classmates starts up a practice in San Francisco. A great case comes into your office, but requires a San Francisco lawyer. So you refer the client to your classmate and the client hires her. Your classmate earns a $100,000 fee and wants to give you $1,000 for sending the client to her. Is this fee-splitting permitted under the Model Rules? Under the CRPC?

The fee splitting is not permissible under the Model Rules between lawyers who are not in the same firm unless the division is proportional, client agrees in writing and the fee is reasonable. Here, the fee split is not proportional because Ive done no work for the client and not earned any fees so it fails the MPRE test for proportionality. However, the California Rules of Professional Conduct have no proportionality requirement. The client only needs to agree in writing to the fee split and fees must be not be increased to cover the $1000 fee, i.e. the overall $100K should not be increased to pay me. So in California, I can get $1000 for referring a client to another law firm.

h.Fee Division with Non-Lawyers(1)A lawyer in California may divide a fee with a non-lawyer:

(a)lawyer referral service established and operated in accordance with State Bar standards

(b)when there is an agreement to provide money upon lawyers death to estate or other designated person2.Arbitration of Fee Disputesa.Unique rule in California:

lawyer must notify the client of the right to mandatory fee dispute arbitration before lawyer may sue client for fees

C.Safekeeping of Client Funds or Property (OL IV. C.)1.A lawyer must:

a.deposit funds in trust account and property in securities in safe deposit box

b.pay or deliver promptly

c.keep records of disbursements

d.commingling is permitted to the extent that funds are needed to pay bank charges and fund belong in part to the lawyer and in part to the client, unless there is a dispute

BAR EXAM APPLICATION

Question 1Applicants were asked to analyze issues arising from Lous representation of Sally in a divorce action. Lous friend Frank asked Lou to telephone Sally, Franks sister, and offer to represent her. Lou telephoned Sally and they met the next day.

While discussing fees, Sally told Lou she had no money but jointly owned with her husband art worth $1,000,000. In a written agreement, Lou agrees to accept 50% of any assets awarded to Sally.

What ethical violations, if any, has Lou committed?

Applicants must consider whether solicitation of legal services is permissible and discuss the reasonableness of the proposed fees, particularly in the context of contingency fees.

From the July 2005 California Bar Exam

California and Model Rule 7.3 do not allow solicitation of clients, and solicitation includes calling potential clients out for pecuniary interest. The only exception is pro-bono representation, representation of a family member or former client. Here, Lou has solicited Sally by calling her up and does not seem to fit into any of the exceptions of solicitation. While Model Rules do not allow contingency fees, they are allowed in California, even for divorce matters. However, there may be issues with regards to the proportionality of the contingency fees as the fee of 50% of assets seems rather unconscionable and unreasonable, which violates both CRPC and the MPRE.BAR EXAM APPLICATION

Question 2Applicants were asked to analyze issues arising from Lawyers opening of a personal injury practice. Lawyer asks friends and family to pass the word around that I have opened a solo practice specializing in personal injury law. Lawyers brother Bert, an emergency room admitting clerk at a local hospital, gives Lawyers business card to patients who are admitted who appear to be victims of wrongdoing, and suggests that they contact Lawyer. Each time Lawyer is retained by someone referred by Bert, Lawyer takes Bert out to lunch and gives him $500.

What ethical duties, if any, has Lawyer breached?

Applicants must consider the rules applicable to advertising, in particular payment for referrals, solicitation of clients, and false and misleading advertisements of a lawyers services. The significance of the fact that solicitation took place in a hospital should also be considered.


Advertising is generally allowed so there are no issues with the lawyer initially asking his family members to spread the word about his new solo practice. However, ambulance chasing soliciting clients at the scene of accident or hospital -- is a presumed violation of both the Model Rules and CRPC. Here, lawyer appears to be soliciting clients at the hospital by ambulance chasing, which is a violation of both California and model rules prohibition on solicitation.

A lawyer cannot enter into a referral service or solicitation service with a non-lawyer unless the board certifies the referral service. Here, it appears that the lawyer has a referral service with Bert, a non-lawyer, which is against California rules prohibition on improper advertising and solicitation.

It is also misleading for the lawyer to state he specializes in a particular area of law when a board in that area has not certified him. Here, lawyer asks family members to advertise that he specializes in personal injury law, but it is not clear that he has ground to certify that. Absent state certification of his specialty, the lawyer has engaged in false and misleading advertising by advertising that he is a specialist in personal injury law.

V.DUTIES TO CLIENTS

A.Competence (OL V. A.)1.Generally

a.A lawyer cannot:

intentionally, recklessly or repeatedly fail to perform legal services with competence. Cannot take work you cannot perform competently.In California competency is defined as diligence, learning and skill, mental, emotional and physical ability reasonably necessary to perform.

b.Competency cannot:

waived by the client.

c.Competency is not a sliding scale. The same standard applies to all cases even pro-bono cases

EXAMPLE:A client cannot agree to a reduced fee or no fee at all in exchange for waiving an attorneys competence. Were this to occur, the attorney could still be disciplined by the CA bar for violating the ethics rules.

d.A lawyer may gain competency by:

(1)associating with a lawyer reasonably believed to be competence

(2)acquiring skill and learning required for performance

e.ExceptionA lawyer may perform work:

in an emergency, where referral or consultation with another lawyer is impracticable. Emergency cannot be created by the lawyer

(1)Once the emergency has passed:

do what is reasonably necessary

2.Malpracticea.Two Important Rules

(1)Cannot prospectively limit liability

(2)Client must be informed in writing of right to seek independent counsel before settling malpractice case and the lawyer cannot give the client a take it or leave it offer

b.In California, if a lawyer violates an ethics rule:

The violation is admissible evidence on the standard of care in legal malpractice actions

c.In California, a criminal defendant who sues a lawyer for malpractice:

Must make a colorable claim of actual innocence

d.Under California rules:

Lawyer will not be held liable for malpractice to persons outside the lawyer-client relationship unless the lawyer owed a third party an independent duty of care

(1)Examples include:

Beneficiaries of a will or trust whom the client intended to benefit. This is referred to as the Lucas test in California intended beneficiaries known to attorney can sue for malpractice.

B.Conflicts of Interest (OL V. B.)1.The Lawyers Personal Interest

a.Personal Interests Generally

(1)A lawyer may not accept or continue representation of a client when he has or had:

business, financial, legal or professional conflict with the client in the subject matter of representation

Look out for any type of interest that could create a rift between attorney and client. Where it is found, ask if it is enough to terminate the representation.

EXAMPLE:Plaintiff attempts to hire Attorney, and it turns out that Defendant is a long-time friend and former college roommate of Attorney. This is a personal relationship which would create a rift, as this friendship is substantially likely to influence Attorneys case.

(2)A lawyer may not represent the seller at a judicial sale:

when someone close to the lawyer is the buyer

(3)Key factor:

client wants to sell the property for the highest price while lawyers spouse, relative, partner, associate or employee wants to pay the lowest price. This is a conflict of interest.

b.Gifts from Clients(1)A lawyer cannot:

induce any substantial gift from a client unless the client is related to the lawyer. A lawyer may receive such a gift if there is no undue influence.

(2)Under the Model Rules, a lawyer cannot:

solicit a substantial gift or prepare on behalf of the client an instrument giving lawyer the gift, unless the lawyer is related to the client

EXAMPLE:Attorney drafts his mothers will, whereby she leaves everything to Attorney. This is permissible under the Model Rules. However, if Attorney drafts his best friends will, whereby the friend leaves everything to Attorney, this would violate the rules.

c.Use of Client Information(1)While California does not have a rule like Model Rule 1.8(b) prohibiting the lawyers use of client information without informed consent:

such activities could be violations of the fiduciary relationship between lawyer and client

EXAMPLE:A client wishes to expand his business and rent or lease a space next door to save on moving costs. The lawyer cannot lease that space with the hope of subleasing it to the client at a profit.

2.Acquiring an Interest in Litigationa.General rule:

Lawyer cannot acquire proprietary interest in cause of action

b.Two limited exceptions:

(1)lien to secure legal fees

(2)contract for contingent fee in civil cases

3.Advancing Money to a Clienta.Under Model Rule 1.8(e), a lawyer cannot provide financial assistance to a client in connection with pending or contemplated litigation except to:

(1)to advance costs or expenses of the litigation

(2)pay on behalf of indigent clients

b.CRPC 4-210 permits not only costs and expenses to be advanced, but also permits loans to clients if:

(1)client agrees to repay it and it is in writing

4.Business Transactions with Clientsa.Four Requirements

(1)fair and reasonable to the client

(2)fully disclosed to client in writing

(3)client gives written consent

(4)client advised to obtain independent counsel

EXAMPLE:A lawyer cannot pay a client who is a car dealer $5 for a brand new car as the terms are not fair and reasonable.

EXAMPLE:Before a lawyer can sell his antique car to a client who is an antique car dealer, the lawyer must give the client an opportunity to seek independent counsel, even if the price is fair and the client has given written consent.

5.Influence by Persons Other Than Clienta.Both rules permit a lawyer to accept fees from a third party if:

(1)there is no influence in the lawyer-client relationship

(2)no violation of confidentiality

(3)client provides informed, written consent

6.Concurrent or Joint Clientsa.California rules permits a lawyer to represent two clients concurrently:

even if there is actual or potential conflict, with informed, written consent from each client

b.The Model Rules requires that the lawyer:

reasonably belief that the conflict will not harm either client

HYPOTHETICAL

Two clients come into your office to set up a business. One has the creative talent and the other has the business management experience. The client with creative talent has no money to invest in the business but has special experience that is valuable. The business manager has venture capital contacts. Neither has formed a business before. Can you represent both clients?

CRPC permits represent clients concurrently even if there is an actual or potential conflict in interest so long as both parties provide informed, written consent. The representation may also be permitted under the Model Rules if lawyer reasonably believes that any potential conflict will not harm either client. This does not require clients consent where the conflict is only potential. The same facts will trigger both. We need to talk about different contributions the person brings to the business. We need to discuss potential conflicts that will arise as neither of them have done this before, Given these discussions take place and there is informed written consent from client under California rules for any potential conflict that may arise, lawyer can represent both clients

7.Former Clients or Personal Relationshipsa.The rules are concerned with a lawyer:

throwing the former client under the bus in favor of a new client

b.If the previous relationship with the former client:

would substantially affect relationship with new client, we must give written disclosure to new client

c.Factors to consider in regards to substantially affect include:

(1)look for overlap in the law or facts

(2)look for confidences the lawyer may have that may help one or hurt the other

(3)what would former client be upset about

Be certain to use the right test for the right client. If the question involves a former client, use the substantially affects test and include that proper written disclosure.

d.A lawyer may not:

drop one client in order to get a new client. This is the hot potato doctrine

8.Sexual Relations with Clienta.The California rules:

do not prohibit sexual relations between a lawyer and a client but impose a number of safeguards

(1)The lawyer may not:

(a)require or demand sexual relations with a client as a condition of representation

(b)employ coercion, intimidation, undue influence in entering into sexual relations with a client

(c)continue representation of a client with whom he has had sexual relations if it would cause lawyer to perform legal services incompetently

b.This is a personal conflict of interest

(1)It is not imputed to entire law firm. Another lawyer at the law firm can continue the representation.

9.Imputed Disqualificationsa.Law Firms

(1)A single lawyers conflict will not disqualify the lawyers entire firm when:

(a)the conflict is due to a personal interest the lawyer has and does not:

1)Personal conflict i.e. sexual relationships, and no present significant risk

(b)when the enemy is hired: the conflict is due to the lawyers former representation in the same or substantially related matter, either individually or with a law firm the lawyer was formally associated with, provided:

1)Disqualified lawyer is screened

2)Former client is notified in writing

3)Former client receives periodic certifications of compliance

(2)ScreeningKeeping the disqualified lawyer away from clients files

HYPOTHETICAL

A lawyer at your firm represents ABC Oil Company, preparing franchise contracts for them. She leaves your firm to go to another firm. After she leaves, you want to represent an environmental group suing ABC Oil Company for damage to local wildlife. The lawyer who left was the only lawyer at your firm who ever worked on ABCs cases. Can your firm represent the environmental group that wants to sue ABC?

You can sue ABC Oil Company, former client, unless it is the same or substantially related matter and any lawyer who remains at the law firm has confidences about ABC. For same or substantially related test, we need to examine if there is an overall in facts or law. Here, we have franchise contracts and damages to local wildlife, which do not appear to be similar or substantially related to one another from the facts presented. As for confidences, there are none since there is no other lawyer who has confidences, so can sue former client.

C. Organization as a Client (OL V. C.)1.Two Key Scenarios

a.Rogue employee - When an officer or employee is planning to or harming the corporation

b.Conflict of interest - Where the officers or employees have a different interest from organization

2.Rogue Employee Scenarioa.The Model Rules require:

report up to the highest level i.e. usually the board of directors

(1)If this does not work, if there is substantial risk of harm to the corporation:

reveal what you know outside the corporation only to the extent necessary to stop the harm usually by calling a regulatory agency

b.California requires a lawyer:

to urge employees to reconsider

(1)If this does not work:

lawyer has a right and duty to resign in accordance with rules

3.Different Interest Scenarioa.Solution under both rules:

Make sure that the person understands that lawyer represents the organization D.Confidentiality (OL V. D.)1.Duty of Confidentiality

a.In California, the only exception to confidentiality:

Prevent a criminal act that is likely to result in substantial risk of death or bodily harm. However, it is not mandatory to make the disclosure. It is permissive.

b.Conditions to this include:

(1)Make a good faith effort to dissuade the client

(2)Tell the client that you can disclose

c.The Model Rules are broader, allowing revelation when:

(1)Lawyer reasonably believes disclosure is necessary to prevent death or bodily harm

(2)The client has given informed consent to disclose and the disclosure is impliedly authorized to carry out representation

(3)secure legal advice about the lawyers compliance with the Model Rules

(4)Establish a claim of self defense in a controversy between lawyer and client

(5)Comply with another law or court order(6) Substantial financial injury through crime or fraud exception:

(a)A lawyer can reveal confidences where the crime or fraud:

is certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer. California does not have this exception.d.California has implied exceptions to the confidentiality rule in the following instances through case law:

(1)Duty of confidentiality does not extend to assisting the client in evading arrest on felony charges(2)Defending actions brought by the client against the lawyer

(3)Attempts to collect the lawyers fees and preventing the client from causing death or serious bodily harm when the lawyer discovers his intent to do so

2.Attorney-Client Privilegea.When an issue arises involving crime-fraud:

No fraud exception in ethics law but evidence laws have this exception. Analyze both issues. The lawyer might violate ethical duty of confidentiality to comply with court ordered disclosure for crime-fraud exception under evidence rules

EXAMPLE:Judge orders disclosure of something because of crime-fraud exception under Evidence, but you learned it as a confidence. Judge is right on the one hand, but you learned it as a confidence and there is no exception to reveal it. Cover both.

EXAMPLE:Client is sitting in your office and hands you a gun, saying he used it to kill the victim, then leaves gun with you and goes home. Confidence is protected, that he owned the gun and used it to kill victim. Cant just keep the gun, though; must turn it over. Dont resolve it, just cover both rules.


Question 3

Applicants were asked to consider several issues arising from Lawyers representation of Client for injuries sustained when she was hit by a truck driven by Driver. Lawyer and Client have entered into a valid written contingency fee agreement for one-third of the recovery.

Driver offers $15,000 to settle the case, but Client does not wish to settle. Lawyer has advanced $5,000 to Client. Lawyer thinks there is little chance of recovery if the case drags on.

After Lawyer takes Client out for an expensive dinner during which they shared two bottles of wine, Lawyer persuades Client to accept the settlement offer by agreeing to give her the net proceeds after his contingency fee, deducting the amounts advanced. Lawyer distributes the net proceeds to Client as agreed.

What ethical violations, if any, has Lawyer committed?

Applicants must consider a lawyers duty of loyalty to the client, in particular with respect to lawyers acting in self-interest and a clients right to make decisions.


Contingency fees are valid in California, so long as fees are not unconscionable. One-third fee appears reasonable. Lawyer can advance expenses related to litigation for the client pending a favorable resolution of the case, so that is not a problem here. However, there is a conflict of interest in this case. The attorney wants his fee and the money advanced to the client for litigation and wants it now while the client wants to hold out for more. In order to get the client to agree, the lawyer even takes the client out for an expensive dinner. A lawyer may not force the client to settle, AND the settlement appears to be induced in this case. So the lawyer has violated duty of loyalty to client by acting self-interested and violating the clients rights to make a decision regarding settlement. BAR EXAM APPLICATION

Question 4

Applicants were asked to consider several issues arising from Lawyers representation of Client for injuries sustained when she was hit by a truck driven by Driver. Lawyer and Client entered into a valid written contingency fee agreement for one-third of the recovery.

Because Client was indigent, Lawyer orally agreed to advance Clients litigation expenses and lend her $1,000 monthly in living expenses that he would recoup from the settlement.

What ethical violations, if any, has Lawyer committed?

Applicants must consider permissible fee arrangements, in particular contingency fees, and the rules concerning acquiring an interest in litigation.


Under both the California and Model Rules, a lawyer may advance litigation expenses to a client who is indigent which he can later recoup from the settlement. However, under the Model Rules, the lawyer cannot advance money for living expenses. He can do so in California but the agreement for the living arrangements must be in writing and the client must agree to repay it. Here it is not in writing and the client has not agreed to repay, so the lawyer has acquired an interest in litigation and violated his duty of loyalty to client.

VI.TERMINATION AND SCOPE OF REPRESENTATION

A.Withdrawal from Representation (OL VI. A.)1.Mandatory Withdrawal

a.Withdrawal is required:

if the lawyer knows that continued employment will result in violation of the CPRC or State Bar Act. Model Rule 1.16(a) mandates withdrawal for other violations of professional rules and the law.

b.Withdrawal is also mandatory when the physical or mental condition of the lawyer:

materially impairs the lawyer and prevents him from performing representationc.California adds mandatory withdrawal where the lawyer:

renders it unreasonably difficult for him to perform the representation effectively.

d.Even in cases of mandatory withdrawal:

That the clients action is without cause and has the purpose to harass frivolous litgation

(1)if there is proceeding, need court permission and even then the court may not allow withdrawal (3)Such considerations include:

delay or prejudice

2.Permissive Withdrawala.Withdrawal is permitted when:

(1)the client:

(a)insists on presenting claim or defense not warranted under law and that cannot be supported by good faith argument

(b)seeks to pursue illegal course of conduct or insists that lawyer pursue illegal or prohibited conduct or conduct contrary to lawyers judgment

(c)renders it unreasonably difficult for lawyer to represent client

(2)the circumstances are bad for the lawyer i.e. continued employment likely to lead to bar violation, inability to work with co counsel, lawyers mental or physical condition is bad, client agrees to withdrawal or other good cause

b.Even where withdrawal is permitted:

the lawyer needs courts permission

3.Responsibilities of Withdrawing Lawyera.notice to client

b.time to employ other counsel

c.return unearned fees

d.return client fees and files

e.protect clients interest

B.Scope, Objective, and Means of Representation (OL VI. B.)1.Two Key Concepts

a.What is frivolous

b.What is the clients decision

2.Attorneys Obligationa.The purpose of the lawsuit:

cannot be frivolous or sole purpose should not be to harass and injure

b.It is permitted:

(1)to argue for modification or change or extension of law

(2)to explain to client the consequences of client of frivolous litigation

c.In a criminal matter:

to make the prosecution prove every element of the crime

3.Client Righta.Decisions belonging to the client include:

(1)Settlement or plea bargain

(2)Whether to testify in defense

(3)Whether to waive a jury trial

b.The California rules state:

attorneys are obligated to pass along written settlement offers and plea bargains

VII.DUTIES TO OTHERS

A.Zealous Advocacy Within the Bounds of the Law (OL VII. A.)1.A lawyer may not:

a.advise anyone to violate any law, rule or ruling of a tribunal unless the lawyer believes in good faith that the law, rule or ruling is invalid

b.cannot bring a frivolous lawsuit

2.A lawyer may:

a.test the law

b.require prosecution to prove every element of the crime

c.explain consequences of the law

B.The Lawyer as a Witness (OL VII. B.)1.General Rule

CRPC and Model Rule 3.7(a) prohibits lawyer from acting as both advocate and witness in the same litigation matter

2.Exceptionsa.Uncontested matter

b.Value of legal services i.e. to establish damages for clients

c.Substantial hardship on client

(1)This is an exception under the Model Rules

d.clients informed written consent

(1)California adds this exception

C.Special Responsibility of Prosecutors (OL VII. C.)

1.A prosecutor:

a.must not institute charges when he knows charges are not supported by probable cause

b.must ensure accused has been advised of right to counsel and given reasonable time to obtain counsel

c.must not seek to obtain from unrepresented accused waiver of trial rights

d.must timely disclose certain evidence that would mitigate the defendant or negate guilt and not subpoena proceeding about past or present client

D.Impartiality and Decorum (OL VII. D.)1.Improper Influence on Judges

a.Not give the gift to judge unless judge is related

b.It is alright to make campaign contributions

c.No communication with the judge unless it is in open court, with consent of other counsel, in presence of all other counsel, in writing with copy to other counsel and in ex parte matters

2.Ex Parte Communications with Jurorsa.Model Rule 3.5 prohibits a lawyer from:

(1)seeking to influence a juror or prospective juror

(2)communicating ex parte with a juror during proceedings

(3)cannot harass after trial

b.A lawyer must:

reveal improper conduct to the court promptly

3.Prohibited Contact with Witnessesa.A lawyer is forbidden:

from offering to induce any witness to testify or bribe them

b.A lawyer may:

pay reasonable expenses but cannot be contingent on content of testimony

E.Conduct in the Course of Litigation (OL VII. E.)1.Duty to Expedite Litigation

a.California prohibits and criminalizes willful delay of a clients suit for the lawyers own gain. Model Rule 3.2 says lawyer must make reasonable efforts to expedite litigation

2.Pursuing Frivolous or Vexatious Litigationa.lawyer has a duty to bring only legal or just claims and defenses, and may not file or pursue legal actions or tactics for corrupt motives

.Testimony and Evidencea.cannot suppress, conceal or destroy evidence

4.Fairness to Opposing Party and Counsela.A lawyer cannot trick, hide something from, or cheat their opponent:

(1)Trick:

Do not assert personal knowledge

(2)Hide:

Do not obstruct or hide evidence

(3)Cheat:

Do not knowingly make frivolous discovery requests, fail to obey the tribunal

5.Inadvertent Disclosurea.If a lawyer inadvertently receives confidential documentation:

He must notify the sender and cannot use it

F.Fraud or Perjury (OL VII. F.)1.False Statements to Tribunal

a.General rule:

California and MPRE will impose sanctions for concealment of material facts and false statements of fact to tribunal

b.Under the Model Rules, there is a limited exception:

Duty to tell the tribunal if the testimony if lawyer knows the evidence or testimony is false

c.California instead adopts a look the other way approach. Under this approach, attorneys must:

(1)avoid willfully procuring another person to commit perjury

(2)refrain from line of questioning on which he knows the client intends to lie

(3)not offer false evidence in either criminal or civil proceeding, which is a felony

HYPOTHETICAL

You represent Dennis who is charged with a crime. Dennis and his mother have created an alibi that Dennis was home with his mother at the time of the crime. Dennis tells you, his lawyer, that he and his mother are lying and that he was not with her. Can you question Dennis at the trial? Can you question his mother?

Under Model Rules, perjury or intent to commit perjury creates a duty to tell the tribunal. Under CRPC, there is a look the other way approach when faced with the same conflicting duty of confidentiality to client and duty of candor to the court. Under CRPC, the lawyer must simply avoid questioning the client and avoid willfully procuring the testimony of another person who intends to commit perjury. However, Dennis has a right to testify so the lawyer cannot refuse to call Dennis to the stand. There is no such right for Dennis mother. So under California rules, lawyer must question Dennis, but avoid the line of questioning that would enable Dennis to commit perjury.

2.Candor Toward the Tribunala.Lawyer may not intentionally misquote to a tribunal the language of a book, statute or legal decision or cite as authority a decision that has been overruled by statute

b.A lawyer may not:

mislead the court about authority

(1)The Model Rules:

disclose controlling adverse controlling authority

(2)In California:

same rules implied through case law

c.Model Rule 3.3 states that a lawyer may not knowingly:

(1)do not lie to court

(2)do not mislead

(3)do not offer false evidence

G.Communications in Course of Representation (OL VII. G.)1.Trial Publicity

a.California rules prohibit a lawyer from making a media statement:

if there is a substantial likelihood that it would result in material prejudice

b.A lawyer may make media statements:

if lawyer needs to protect the client from undue prejudice of recent publicity as long as lawyer did not start itc.ExceptionsA lawyer may state:

(1)The claim, offense, defense, identity of the people

(2)Information that is in the public record

(3)Investigation is in progress and warning of danger of persons involved

(4)Scheduling or result of litigation

(5)Request for assistance in getting evidence

H.Communications with Third Parties (OL VII. H.)1.Truthfulness in Statements to Others Generally

a.The Model Rules prohibit a lawyer from:

(1)use means that have no substantial purpose other than to embarrass, delay or burden third party; or

(2)use methods to obtain evidence that violate a persons legal rights

EXAMPLE:An attorney cannot tell a witness that the attorney has six other people who saw a street light turn red if the attorney does not actually have them, or if they did not actually say they saw the light turn red.

b.Under California B&P Code 6068:

use only means consistent with the truth.

2.Communications with Represented Partiesa.California and Model rules prohibit a lawyer from communicating with a party the lawyer knows is represented by another lawyer in a matter about the subject matter of the representation without the permission of the represented partys counsel or as authorized by law

HYPOTHETICAL

Lawyer is representing Client in a divorce case. Clients spouse has her own lawyer. Clients spouse loves social networking sites. Lawyer goes onto the sites and asks Clients spouse to be a friend, which lets him see personal conversations and information about Clients spouse and lets him exchange short messages with Clients spouse. Is Lawyer violating ethics rules?

Both California and Model Rules prohibit the lawyer from communication with a party that the lawyer knows is represented by another law in the subject natter of representation without the express permission of counsel. Email, social networking is communication with a client. The lawyer is also misleading the third party by not revealing his identity,

3.Communications with Unrepresented Personsa.Under the Model Rule:

Have to reveal role as advocate and cannot suggest that lawyer is impartial

b.While California does not have a similar rule:

No express rule but will not permit this behavior

4.Threatening Chargesa.California rules:

Cannot threaten criminal, administrative or disciplinary charges but can threaten civil charges

EXAMPLE:You cannot threaten to report an attorney for ethics violations in order to obtain a legal malpractice settlement.

I.Other Roles of the Lawyer (OL VII. I.)

1.Primary Rule

CA does not contain express rules but under the Model Rules, a lawyer must exercise independent professional judgment and render candid advice. If acting as a mediator, make sure the parties understand that you do not represent them.

VIII.MAINTAINING THE INTEGRITY OF THE LEGAL PROFESSION

A.Reporting Professional Misconduct of Others (OL VIII. A.)1.Under the Model Rules, a lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct which raises a substantial question as to the honesty and fitness of an attorney has an obligation to report

a.Important Exceptions

(1)Must have actual knowledge of violation

(2)No obligation to report if attorney-client confidence is only way that the lawyer knows of the violation

EXAMPLE:Attorney wants advice about whether or not theyve violated the rules, so they go to another lawyer and explains it. This is an attorney-client confidence.

2.Under California rules:

No express duty to report misconduct of other lawyers or judges. Lawyers have to report their own misconduct i.e. three or more malpractice suits within 12 months, entry of judgment for fraud, breach of fiduciary duty, negligence, judicial sanctions over a $1000, indictment charging felony conviction, professional discipline,

B.Unauthorized Practice of Law (OL VIII. B.)1.Lawyers are only permitted:

to practice where they are licensed

2.A lawyer cannot:

aide others in unauthorized practice of law

EXAMPLE:Permitting a paralegal to sign your name or work in your name without actually authorizing them or being there.

3.A lawyer may hire a disbarred attorney. The hiring attorney must:

give written notification to the bar

a.The disbarred attorney:

must not act as a lawyer else there is UPL problem

C.Pro Bono Work (OL VIII. C.)1.Both rules:

No requirement but encouragement

2.Your obligations to the client:

all ordinary ethics and duties are triggered for nonpaying clients

D.Group Legal Services Organizations (OL VIII. D.)1.The rules permit:

serving in legal services organizations


Question 5

Applicants were asked to analyze issues arising from Alexs representation of Booker and his hiring of Dale, a recently disbarred attorney. Alex, a recently- licensed attorney with a solo law practice was contacted by Booker, a college friend who is a successful publisher. Booker asked Alex to perform the legal work to form a partnership between Booker and Clare, a creative writer of books for children. In a brief meeting with Booker and Clare, Alex agreed to represent both of them and set up the partnership for a fee of $5,000. Alex had no experience with forming partnerships, so he hired Dale as a paralegal at a wage of $250 an hour. Although Dale had no paralegal training, he had decades of experience in law practice, including the formation of partnerships. Alex notified the State Bar about hiring Dale and disclosed Dales involvement and disbarred status to both Booker and Clare. Dale spent four hours on his own preparing the partnership documents and meeting with Booker and Clare about them. Alex paid Dale $1,000 for his work. Alex spent a total of two hours on the partnership matter, including the initial meeting with Booker and Clare, reading the partnership documents in order to learn about partnerships, and a final meeting to have Booker and Clare sign the documents.

What ethical violations, if any, has Alex committed? Answer according to California and ABA authorities.

Applicants must consider a lawyers duty of loyalty and confidentiality when representing multiple clients, as well as a lawyers duty of competence, the unauthorized practice of law, and issues regarding fees.


Under ABA rules, lawyers may not represent multiple parties who may have an actual or potential conflict of interest unless the lawyer reasonably believes that the conflict wont hurt the client. There is no such rule under California ethics, but the client must be informed of potential or actual conflict of interest and give written informed consent. Alex has failed to do so in this case by not explaining the conflicting issues that may arise for Booker and Clare in forming a partnership.Lawyers may not engage in unauthorized practice of law. Alex has engaged in UPL by hiring Dale, a disbarred attorney, to do work that goes beyond clerical or administrative, into actual practice of law. Even with written notification to the state and parties, Dale is engaging in UPL, and thus Alex is liable for UPL as his principal.

A lawyer must not represent clients in matters where he is not competent. Here, Alex is not competent about partnership laws so he should have refused to accept the case or gain competence. He definitely should not have hired a disbarred attorney to do the work! This is not the way to get competent. By hiring the disbarred attorney, he is violating duty of competence under both ABA and CRPC.

Finally, ABA rules do not permit fee splitting outside of law firms unless the split is proportional, the client consents in writing and the fee is reasonable. California does not have proportionality requirement but does require client to have informed written consent. Alex did not make these arrangements in this case when he gave Dale $1000 for services. Not proportional under the ABA and no informed written consent under both ABA and CRPC rules. He is thus, in violation of both ABA and CRPC.


Question 6Applicants were asked to analyze issues arising from Lawyers representation of Paul, who suffered head injuries when struck by equipment at Dinoworld, the local amusement park. Lawyer and Dinoworlds attorney agree to set a deposition date for Dinoworlds CFO in the next 90 days. Lawyer attends a pass-holder-only event at Dinoworld at the invitation of his brother-in-law where the CFO leads a tour and makes a presentation. Lawyer does not wear a name tag and does not introduce himself to the CFO, but asks questions about Dinoworlds finances and makes notes about his responses.

What ethical duties, if any, has Lawyer breached?

Applicants must consider a lawyers duty of fairness to opposing parties and to persons represented by counsel. Also, the avoidance of making material misstatements of fact or omission should be considered.


Lawyer may not communicate with the client of a represented party in a matter that is subject matter of litigation without consent of the other counsel or law. Here, lawyer has violated duty of fairness to the other party by communicating with the opposing party in a matter that is the crux of the current litigation without seeking consent of the opposing partys counsel. Further, lawyer has misled Dinoworld by not revealing his identity, which is a material misrepresentation or omission of fact. Exam Tip

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california bar exam lecture notes - professional responsibility

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