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Professional Responsibility


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A lawyer may not
violate or attempt to violate RPC or knowingly assist another to do so

commit a criminal act that reflects adversely on the L's honesty or fitness as a L in other respects

state or imply an ability to influence a government agency or official

engage in conduct involving dishonesty, fraud or misrepresentation

engage in conduct prejudicial to the administration of justice

knowingly assist a judge or judicial officer in conduct that violates applicable rules of judicial conduct or other law
Professional discipline in host state
may impose professional discipline whether or not he has been admitted to practice there
Disciplinary procedure

initiated by complaint to state bar

complaint examined in a preliminary screening process conducted by panel appointed by the grievance committee

nonpublic hearing before grievance committee

L retains right to counsel and 5th amendment rights
unauthorized practice of law

in california, is it a misdemeanor for anyone to practice law in the state without being an active member of the state bar of CA
Unauthorized Practice of Law

Impermissible lay activities

real estate broker-agent drafting sales K

lay tax adviser counseling individuals on legal tax implications of their conduct

estate planner drafting wills or preparing estate plans for specific individuals
Unauthorized Practice of Law

Permissible Lay activities

Real estate broker/agent filling in blanks on standard sales K

lay tax adviser preparing tax returns

estate planner disseminating general info to the public on estate planning
Regular admission to practice in another state

if she graduated from an ABA-accredited school

has actively practiced in her home state for 5 of past 7 years

meets the other state's character and fitness requirements
Limited admission to practice in another J

"Pro Hac Vice" admission
in most states, accomplished by a simple motion nade a by a member of the host state bar, coudpled with insurances that the applicant lawyer is of good moral character

under RPC, if lawyer handles local lawyer as co-counsel
multi-jurisdictional law firms

permissible if the individual lawyers do not practice in a J where they are not admitted and the law firm's public communications specify the jurisdictional limits on lawyers whose names are listed
Lawyers practicing with nonlawyers

a lawyer may not practice law in association with, or share fees with, a nonlawyer

this rule does not prohibit a lawyer from delegating tasks to a paralegal, law clerk, student intern, or other such person; but the L must supervise the delegated work carefullt and must be ultimately responsible for the results
Law firms and nonlawyers

law firms may set up in such a way that a nonlawyer is a partner or corporate officer or director; or a nonlawyer has the right to direct or control a lawyer's professional conduct
Law related ancillary services
lawyers are permitted to provide law-related services (financial planning, accounting, trust services) to clients
Naming the law firm

must not be firm name or letterhead that is false or misleading

the name of a lawyer holding a public office must not be used in the name of a law firm or in communications on its behalf during any substantial period in which the L is not actively and regulaly practicing the law

a multistate law firm may use the same firm name in each J, but must list the jurisdictional limitations of those L's not licensed to practice in a particular J
Partnerships with laypersons involving legal practice
a L may not be a partner with a nonlawyer if any of the partnership activities consists of the practice of law
No sharing of fees with nonlawyer


(i) agreement to provide for the payment of money, over a reasonable period of time after a lawyer's death, to the L's estate, or to one or more specified persons

(ii) payment of the purchase price of a law practice to the estate or representative of a deceased, disabled, or disappeared lawyer

(iii) payments pursuant to a compensation or retirement plan

(iv) share court-awarded legal fees with a nonprofit organization that employed or recommended employment of the L in the matter
Legal Corporations

L may incorporate but remains personally liable for her own malpractice

non-lawyer may not have interest in corporation
Membership in a legal services organization

L may serve as a director, officer, or member of a legal services organization other than the law firm L practices at

L must not knowingly participate in a decision that would be incompatible with the L's obligations to a client, or where could have a material adverse effect on a client
Responsibilities of a partner or supervisory L

a CA lawyer is prohibited from assiting in, soliciting, or inducing an ethics violation by another person

if one member of a firm commits a disciplinary violation, other members of firm can be disciplined if they approved it knew about it and did nothing to prevent it
Restrictions on right to practice

L must not participate in offering or making

(i) a partnership or employment agreement that restricts the rights of a L to practice after termination of the relationship, except an agreement confering benefits upon retirement

(ii) or an agreement in which a restriction on the L's right to practice is part of the settlement of a controversy between private parties
Sale of a law practice

RPC permits a L to sell a law practice if

(i) the entire practice, or the entire area of practice, is sold to one or more L's or law firms

(ii) the seller ceases the private practice of law, or ceases to practice in the particular area of law, in the geographic territory in which he formerly practiced

(iii) client fees do not increase b/c of the sale

(iv) seller notifies each client of the sale

CA differences: does not require seller to stop practicing in geographic area, does not permit sale of an area of practice and the "substantially all" provision allows seller to retain a few clients who have long relationship with seller or who pose conflict of interest with purchaser

communications must be true and not misleading (no material mispresentation or ommission)

every ad must include name and office address of one L of firm who is responsible for content

L may not pay people for recommending him, but may people for designing and running ads including fees of qualified lawyer referral service

Additional CA restrictions

prohibited by statute from making communications that contain

(i) guarantee or warranty of the outcome of case

(2) words or symbolds that suggest quick case or a quick settlement

(3) impersonation of L that does not disclose it is an impersonation

(4) dramatization of accident or event without disclosing it as such

(5) contingent fee offer that doesn't want client that still must pay even if lose case

rebuttable presumption in CA
following communications presumed to be false or misleading unless L can prove otherwise:

(i) communications delivered to a potential client who is in the hospital or who is suffering physical or mental distress

(ii) malings that seek fee-paying work that are not labeled as advertisements

(iii) communications containing testimonials or endorsements without a disclaimer

L must not use agents to solicit in a manner that the L could not herself solicit

offers of free services are permitted

may solicit from family members, clients, former clients and from other lawyers

may send truthful, nondeceptive letters unless L has actual knowledge C does not wish to receive the communications

must not harass

must label solicitations as advertising
Communication of Fields of Practice
L may tell public in which fields of law she does or does not practice

lawyers permitted to practice before US Patent Office may call them "patent lawyers (same applies for "admiralty lawyers)

can hold out to be certified specialist: (i) if organization that granted certification has been approved or accredited by the ABA and (ii) communications clearly identify the organization that certified her
Pro Bono work

RPC says L's should aspire to do 50 hours per year

must not seek to avoid appointment by tribunal except for good cause

if C with diminished capacity, L must maintain normal L-C relationship to extent possible, may appoint guardian (CA lawyer may not seek a guardian)

if person with diminished capacity is threatened with immediate harm, a L may take legal action on the person's behalf, even if person would not normally have been able to form L-C relationship
Conflicts of Interest

L must not represent a client if the representation creates a concurrent conflict of interest which exists when:

(i) the representation of a client will be "directly adverse" to the interests of another client, or

(ii) there is a "significant risk" that the representation of a client will be "materially limited" by the L's personal interests or by the interests of another client, former client, or 3rd person
Conflicts of Interests

Client consents to a Concurrent Conflict

L may undertake representation if

(i) L reasonably believes that he can competently and dilligently represent each affected class

(ii) the representation is not prohibited by law

(iii) representation does not involve asserting a claim by one client against another client who is represented by the L in the same case pending before a court or other tribunal

(iv) each affected client gives informed, written consent

if a reasonable L looking at the facts would advise client to not consent to the COI, =unconsentable
General rule of Imputed Conflicts

generally, if a L faces a conflict of interest, no L in the L's firm may represent the client. this rule does not apply to:

(i) conflicts caused by former and current gov't lawyers

(ii) conflicts caused by a purely personal interest of the conflicted lawyer that will not inhibit other lawyer's in firm from representing the client diligently and competently

(iii) conflicts caused by the conflicted lawyer's close family relationship with another L who is representing a different client in the matter

(iv) conflicts caused by the conflicted L's sexual relationship with the client
Imputed Conflicts in CA

b/c RPC is silent on imputed conflicts, a CA lawyer is not subject to discipline for an imputed conflict

however, CA follows the same law for purposes of disqualifying a L from handling a litigated matter
Specific Kinds of Conflicts

Ownership or Financial Interest adverse to client

L may not enter into business relationship with C or acquire pecuniary interest adverse to C unless:

(i) transaction and terms are "fair and reasonable" to C and are "fully disclosed" in writing to the C in a manner reasonably understood by C

(ii) C is informed of desirability of seeking, and given chance to seek outside counsel

(iii) C understands L's role in transaction and gives "informed consent" in writing
Specific Kinds of Conflict

Improper use of Info adverse to client

an L must not use info relating to the representation of a C to the disadvantage of the C unless the C gives informed consent
Specific Kinds of Conflict

Designating oneself as beneficiary

under the RPC, an L must not solicit a substantial gift from a C or prepare an instrument giving L or a person related to L any substantial gift from a C except where C is related to the donee

However, in CA, the L is prohibited from inducing the gift, not preparing the instrument
Conflicts of Interest

Media or Literary rights based on representation

ABA: can't do prior to conclusion of representation

CA: no such provision; however client must fully understand the conflict
Conflicts of Interest

Financial assistance to client

RPC provides that a L must not provide financial assistance in connection with litigation, except that: (1) L may advance court costs and expenses of litigation, repayment which may be contingent on outcome of case, and (2) L representing indigent client may pay court costs and expenses of litigation on behalf of client

CA: similar but (I) applies to all contexts, not just litigation, (2) prohibits a L from buying a potential C with a promise to pay C's personal or business debts, and (iii) permits a L to lend money to her C for "any" purpose after L is hired if the C gives written promise to repay loan
Conflicts of Interest

aggregate settlement of agreement in multiple representation

a L who represents two or more clients must not participate in making an aggregate settlement of the claims of or against the clients unless each C gives informed consent in a signed writing

L's disclosure must explain the existence and nature of all the claims or pleas involved and of the participation of each person in the settlement or agreement
Conflicts of Interest

Limiting Liability for malpractice

a L must not make an agreement limiting the L's liability to a client for malpractice unless the C is independently represented in making the agreement
Conflicts of Interest

settling malpractice claim with unrepresented C or former C

must not settle without advising the person in writing that independent counsel is desirable and giving that person a reasonable chance to consult independent counsel
Conflicts of Interest

L's who are closely related to each other

if related by blood or marriage, must obtain informed consent before they represent different clients in same matter or substantially related matters

CA extends to 3 additional relationships: (1) one L is a client of the other L, (2) the two L's live together, and (iii) the two L's have an intimate personal relationship

remember that conflict that arises when L's are related to each other is not imputed to their respective law firms
Conflicts of Interest

Proprietary interest in the cause of action
under the RPC, a L must not acquire a proprietary interest in a C's cause of action except the L may:

(i) acquire a lien authorized by law to secure the L's fees or expenses and (ii) contract with C for a reasonable contingent fee in a civil case

CA has no counterpoint to this rule
Conflicts of Interest

Sex between L and C
must not have a sexual relationship with a C

rule does not apply if the L and C had a consenual sexual before they became L and C

an L who represents an organization may not have sexual relationship with a constituent of the organization who supervises the L's work or consults the L about the organization's legal matters

a conflict caused by sexual matter is not imputed to other L's in the L's firm
Conflicts of Interest

L represents organization

when the organization's highest authority insists upon an action or inaction that is clearly a violation of the law and is likely to result in "substantial injury" to the organization, the L may resign
Conflicts of Interest

regarding former client
an L who formerly represented a C in a matter may not thereafter represent another client in the same or a substantially related matter if that C's interest are materially adverse to the interest of the former C, unless the former C gives an informed, written consent
Conflicts of Interest

regarding former client cont.

L may not represent a person in the same or substantially related matter in which a firm with which the L was formerly associated represented a C:

(i) whose interests are materially adverse to this person, and

(ii) about whom the L had acquired material info protected by the RPC--unless the former C gives informed, written consent
Conflict of Interest

Using or revealing info

a L who has formerly represented a C in a manner or whose present or former firm has done so may not thereafter:

(i) use info relating to the representation to the disadvantage of the former c except as permitted or required by the RPC or when the info has become generally known or

(ii) reveal info relating to the representation except as permitted or recquired by the RPC
Conflicts of Interest

Trial Counsel as W

RPC states L may not ordinarily serve as trial counsel in litigation where the L is likely to be a necessary W. In such a situation, the L should refuse employment, or withdraw from the case. there are 3 exceptions

(i) if the trial counsel's testimony will relate solely to an unconstested matter

(ii) if the trial consel's testimony will concern only the nature and value of legal services rendered to the client

(iii) if the withdrawal of the trial counsel for the purpose of testifying would result in substantial hardship to the C b/c of the distinctive value of the L or firm to the case
Conflicts of Interest

Trial Counsel as W in CA
In CA, a trial counsel W is prohibited from testifying as a W before a grand jury

however, the trial counsel may testify before a jury if his testimony will concern only an uncontested matter or the nature and value of his services, or the client consents
Conflicts of Interest

L represents organization

a L employed to represent an organization represents the organization acting through its duly authorized constituents

keep in mind that the L must act in the best interests of the "organization" and not any particular officer, employee, or other person associated with the organization

beware of exam Q's where a L is asked to act in the interests of the corporation's president or other official when that conflicts with the best interests of the organization
Conflicts of Interest

L represents Organization: Multiple representations permissible

a L representing any of its directors, officers, employees, members, shareholders, or other constituents
Conflicts of Interest

Conflict when L leaves a firm

when a L leaves a firm, the firm is not prohibited from thereafter representing a person with interests materially adverse to those of a client represented by the formerly associated and not currently represented by the L unless:

(i) the matter is the same or substantially related to that in which the formerly associated L represented the C, and

(ii) any L remaining in the firm has info protected by confidentiality or relating to revealing info pertaining to the representation that is material to the matter

a disqualification may be waived by the affected client
Conflicts of Interest

Special Rules for former and current government officers and employees: Prior public employment creates conflict of interest

The RPC states that except as otherwise expressly permitted by law, a L must not represent a C in connection with a matter in which the L participated personally and substantially as a gov't officer or employee, unless the appropriate gov't agency gives informed, written consent

CA has not adopted this rule but a CA L who has participated in the prosecution side of a criminal case is prohibited from later participating on the defense side of that case
Conflicts of Interest

Screening procedure for former gov't officers and employees

the RPC provides a special "screening" procedure for a L who is personally disqualified from handling a matter b/c he participated in the matter personally and substantially as a gov't officer or employee

other L's in the firsm for which the disqualified L now words may handle the matter if: (i) the DQ L is screened from any participation in the matter, (ii) the DQ L does not share any part of the fee earned in the matter, and (iii) the appropriate gov't agency is promptly notified of the screening arangement
Conflicts of Interest

Screening of former gov't officers or employers who know confidential gov't info

if a L is working as a gov't officer or employer and learns confidential gov't info about a person, the L must not represent a C whose interests are adverse to that person in a matter in which the info could be used to the material disadvantage of that person

other lawyers in firm may continue or undertake representation if DQ is screened from participation and obtains no part of the fee
Conflicts of Interest

Stricter Conflicts rule for current Gov't officers and employees
must follow the ordinary conflicts of interest rules plus:

she must get informed consent of the appropriate gov't agency before she undertakes a gov't assignment that involves a matter in which the L participated personally and substantially before the entering gov't service
Conflicts of Interest

Current Gov't officer or employee who seeks private employment

a L who is currently serving as a gov't officer or employee must not negotiate for private employment with a party in a matter in which the L is participating personally and substantially
Conflicts of Interest

Special Conflicts rules for former judges and similar officials: Later representation

except with informed, written consent of all parties, a L must not represent anyone in a matter in which the L participated personally and substantially as a judge, other adjudicative officer, or law clerk to such a person

special screening rule applies to firm
Conflicts of Interest

Special Rules for former judges and similar officials: Negotiating for future employment

a L who is serving personally and substantially in a matter as a judge, other adjudicative official, arbitrator, mediator, or other third-party neutral must not negotiate for future employment with a party or party's L

Law clerk may if the LC first notifies the judge or other adjudicative official
Establishing Compensation for Legal services (LS)

Duty to avoid fee misunderstanding

the RPC provide that when the L has not regularly represented the c, the fee must be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation

CA requires a written fee agreement if the fees will exceed $1,000 except when (i) the C is a corporation, (ii) the C states in writing that she does not want a written fee agreement, (iii) the legal services are the same kind of service the C previously received and paid for, (iv) the L acted in an emergency to protect the C's rights, or (v) a writing is impractical for other reasons
Establishing Compensation for LS

Fee must be reasonable
must be reasonably bases on such factors as the time, labor and skill required to perform the work

the customary fee within the locality for similar work

the amount involved and result obtained

experience, ability and reputation of the attorney

CA law prohibits unconscionable fees
Establishing compensation for LS

Contingent Fees
a CF is a fee that is dependent on the successful resolution of a client's case and payable from the judgment proceeds

must be in a writing signed by the client and state the method by which the fee is to be determined

prohibited in domestic relations cases and criminal cases

CA is silent on criminal and domestic relations cases

a L who is hired on a CF and fired will recover for services performed if C wins the case
Establishing Compensation for LS

Referral Fees are unethical
The RPC prohibits referal fees. However, a L may ethically divide fees with an outside L if the division is in proportion to the services performed by each L or each L assumes Joint Responsbility for the representation. the fee split must be in writing, state the share each L is to receive, and be signed by the C. total fee must be reasonable

CA rule: In CA, a L may pay a referal fee to an outside L who referred the case to her if the C knows all the terms and consents in writing, and the total fee is not unconscionable, and is not increased b/c of the referral fee
L's duty to C: Basic obligations of competence and care
competent representation requires the legal knowledge, skill, thouroughness, and preparation reasonably necessary for the representation

in addition, the L must act with reasonable diligence and promptness in representing a C, and must keep a C reasonably informed about the status of the matter and promptly comply with reasonable requests for info

Exam tip: in an emergency, a L may assist a C even if the L lacks competence in that particular area. However, assistance can't exceed what is reasonably necessary to meet emergency
L's responsibilites to C

Attorney-client privilege
allows a C to refuse to testify and prevent his attorney from testifying in court about confidential communication between the two or their respective agents
L's duty to C

attorney-client privilege: Duration
continues indefintely, even if the a-c relationship is terminated or the C dies.

in CA, the a-c privilege will terminate when a deceased C's estate is settled and his personal representative is discharged
L's responsibilities to C

Attorney-Client privilege: Corporate client
if the C is a corporation, the privilege covers confidential communications between the attorney and a high ranking corporate official

also covers communications betwn the attorney and other corporate employees if the communication concerns a subject within the scope of the employees duties and the employee: (i) communicates with the attorney at the direction of the employee's superior, (ii) and knows that the communication is to help the corporation get legal advice
L's responsibility to C

attorney-client privilege: scope of privilege
covers not only direct communications betwn the attorney and client, but the communications made through or in the presence of an agent who facilitates the attorney-client relationship (e.g., the attorney's law clerk)

the privilege protects only communications pertaining to legal services, not communications about other subjects such as business tactics or political consequences

privilege also protects confidential communications that are "on the road" to an a-c relationship, even if not formed
L's duty to C

Attorney-client privilege: Exceptions to privilege
(i) C seeks the a's services to enable or aid anyone to commit a future crime or fraud

(ii) the communication is relevant to an issue of breach of the duties arising out of the a-c relationship

(iii) civil litigation arises betwn two persons who were formerly the joint client's of the attorney

(iv) the attorney can furnish evidence about the competency or intention of a C who has attempted to dispose of property by will or intervivos transfer
L's responsibilities to C

Duty of Confidentiality
under the RPC, a L generally must not reveal info relating to the representation of a C.

the confidentiality requirement applies even if the info is acquired before or after the relationship existed

it does not require the C to indicate info that is to be confidential or permit the L to speculate whether particular info might be embarassing or detrimental

continues to apply even after the L-C relationship has terminated
L's responsibility to C

Duty of Confidentiality: Exceptions to Duty
L may reveal info relating to the representation of a C if:

(i) the C gives informed consent

(ii) disclosure is impliedly authorized in order to carry out the representation

(iii) the L reasonably believes it is necessary to prevent a person's reasonably certain or substantial bodily harm

(iv) disclosure is required by order of court, ethics rules, or statutes

(v) disclosure is necessary to obtain confidential legal advice about the L's personal duty to comply with legal ethics rules
L's responsibilities to C:

Attorney-Client privilege: CA exceptions
CA provides additional exception

may disclose the intention of a client to commit a criminal act that the attorney reasonably believes is likely to result in death or substantial bodily harm when disclosure is necessary to

A may disclose even when C is not seeking a's services in carrying out the act, but instead is just conveying the info to A
L's responsibilities to C

difference between attorney-client privilege and duty of confidentiality
a-c privilege applies only to communications made during the course of the relationship and covers only the attorney's formal testimony

the duty of confidentiality protects from any disclosures all info related to the representation however and whenever derived
L's responsibilities to C

Duty to protect a C's property
L must hold property of a C or third persons separate from the L's own property

must keep records of client funds and other C property

must keep C informed and deliver funds or other property to C or 3rd person entitled to receive the funds or property

if L in possession of funds or other property to which the L or a third party has a claim, and the C disputes the claim, the L must keep the disputed portion of the funds or property separate

CA: a L must preserve records of client funds or other property for 5 years after the money or property is distributed
Duties and Bounds of a L's representation

Duty as adviser
a L must exercise independent professional judgment and render candid service
Duties and Bounds of a L's representation

Scope of representation
the C has the ultimate authority to determine the scope of the representation, but the L is responsible for informing the client of, and operating within, the limitations imposed by law and the RPC
Duties and Bounds of a L's representation

Means and Objectives
it is the C who decides what the means and objectives of the representation will be, subject to the L's guidance regarding the law and ethical rules
Duties and bounds of a L's representation

Decisions to be made by C
plea to be entered in a criminal case

waiver of jury trial in a criminal case

whether to testify in a criminal case

acceptance or rejection of settlement offers

what expenses to incur
L's responsibilities to the C

decisions to be made by lawyer
choice of motions

scope of discovery

choice of witnesses

direct and cross-examinations

what evidence to introduce
L's responsibilities to the C

Limiting the scope of representation
when a L feels antipathy for the C's position or objective or is lacking time, interest or competence, the L may limit the scope of representation if the limitation is reasonable and the client gives informed consent
L's responsibilities to C

Assisting the C in criminal or fraudulent conduct
a L must not counsel or assist a C in conduct that the L knows is criminal or fraudulent

if the C insists on illegal or unethical assistance, the L must withdraw

the L who belives his C is involved in lawful conduct must withdraw when he discovers that his advice is being used by the C to commit a crime or fraud

if the C's crime or fraud is continuing, the L must make a "noisy" withdrawal by notifying the victims of the crime or fraud that the L is withdrawing and disaffirming any opinions, documents, affirmations, or the like that the L previously gave and that the C is now using to carry out the crime or fraud
L's reponsibility to C

assisting the C in criminal or fradulent conduct Exam Tip
A L must discuss a proposed course of conduct with a C and explain that the conduct would be unlawful, but the L may not recommend illegal conduct or instruct the C on how to break the law and get away with it
Duties and bounds of an L's representation

communication with represented person impermissible
in the representation of a C, a L may not communicate about the matter with a person he knows to be represented by counsel in the matter unless the person's counsel has granted permission or he is otherwise authorized by law or court order

this rule applies even if the represented person initiated the communication or consented to it
Duties and Bounds of a L's representation

Communications with adverse parties and third persons: application of rule to organizations
L must get the consent of the organization's counsel before communicating with a constituent of the organization (i) who supervises or regularly consults with the organization's L about the matter, (ii) who has authority to obligate the organization with respect to the matter, (iii) whose conduct in the matter may be imputed to the organization

if a constituent of the organization has her own counsel in the matter, the consent of that counsel is sufficient to satisfy this rule

furthermore, the L does not need consent of the organization's counsel to communicate with a former constituent, when doing so, must not violate the organization's rights (pry into privileged communications
Duties and bounds of a L's representation

Communications with adverse parties and third persons: communication with unrepresented party
when a person does not have counsel on his own, a L representing a C may communicate with the person directly

however, when dealing with the unrepresented person, the L must (i) not state or imply that she is disinterested, (ii) clear up misunderstandings about her role in the matter, (iii) not give advice other than to obtain counsel if she knows that her C's interests have a reasonable chance of being adverse to those of the unrepresented person
Duties and bounds of a L's representation

respect for rights of 3rd persons
in representing a c, the L must not use:

(i) means that have no substantial purpose other then to embarrass, delay, or burden a third person, or (ii) methods of obtaining evidence that violate the legal rights of such a person
Duties and bounds of a L's representation

Return of documents sent inadvertently
if a L receives a document relating to the representation of a client and knows or should know that the document was sent inadvertently, the L must promptly notify the sender so that the sender can take protective measures
Duties and bounds of a L's representation

Truthfulness in statements to others
in representing a C, a L must not knowingly:

(i) make a false statement of material fact of law to a third person,or

(ii) fail to disclose a material fact to a 3rd person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by confidentiality rules
Duty and bounds of an L's representation

The conduct of litigation
a L must not make frivolous claims or defenses

additionally, a L must make reasonable efforts to expedite litigation with the interests of the client
Duties and Bounds of a L's representation

Candor toward the tribunal
under the RPC, a L must not knowingly:

(i) make a false statement of material fact or law to a tribunal

(ii) fail to correct a false statement of material fact or law previously made to the tribunal by the L

(iii) fail to disclose to the tribunal legal authority known to the L to be directly adverse to the position of the C and not disclosed by opposing counsel

(iv) offer false evidence

these duties continue to the conclusion of the proceeding--when a final judgment has been affirmed or the time for taking an appeal has passed
Exam tip regarding Candor toward the tribunal
while an opposing attorney must disclose controlling law, he has no obligation to volunteer harmful facts

the opposing side has many fact-finding tools at its disposal (e.g., discovery proceedings)
Duties and bounds of a L's representation

False Evidence
a L must not offer evidence that she knows is false

if only part of a W's testimony is truthful, the L may allow the W to testify to the truthful part

if L can't convince C that untruthful evidence should not be offered, the L must refuse to offer the evidence

may ask the tribunal to withdraw but is not required to unless the a-c relationship has become too strained
Duties & Bounds of a L's representation

False Evidence: evidence believed to be false
a L may refuse to offer evidence that she "reasonably believes" is fale, except for the testimony of a D in a criminal case
Duties & bounds of a L's representation

False Evidence: Remedial measures if false evidence offered
if a L discovers she has offered false evidence, the L must take reasonable remedial measures

the first "reasonable remedial measure' is for the L to speak confidentially with the C (or other W) to warn that person of the L's duty to reveal false evidence, and to seek that person's cooperation in withdrawing or correcting the false evidence

if that fails, L "may" ask tribunal for permission to withdraw

as last resort, L "must" disclose enough info to tribunal to set the matter straight, even if that means disclosing a-c privilege info, or ethical duty of confidentiality info

tribunal then decides what to do about the falsehood
Duties & Bounds of a L's representation

Criminal D who insists on testifying falsely
b/c a criminal D has a constitutional right to testify, a L must allow the D to testify even if the L reasonably believes that the testimony will be false

if L KNOWS the testimony will be false, must try to convince D not to testify falsely

if that fails, the L must ask tribunal for permission to withdraw

as a last resort, must disclose info to tribunal, even if confidential or privileged
Duties & bounds of a L's representation

California position on perjury by criminal defendant
if a CA lawyer is presented with a criminal D who insists on testifying falsely, must try to convince D not to testify falsely

if that fails, may ask the tribunal for permission to withdraw

if that fails, the L may call the D as a W and question him in the ordinary manner up to the point at which the L knows the D will lie

from that point on, the L may allow the D to tstify in a narrative fashion

however, L may not use any of the false testimony in his closing argument
Duties & bounds of a L's representation

Required disclosures in Ex parte Proceeding
a L must inform the tribunal of all material facts known to the L that will enable the tribunal to make an informed decision, whether or not the facts are adverse to his client
Duties & bounds of a L's representation

Fairness to opposing party and counsel continued
(vi) request a person other then a C to refrain from voluntarily giving relevant info to another party unless:

(a) the person is a relative or employee or other agent of a client and

(b) the L reasonably believes that the person's interests will not be adversely affected by refraining from giving such info

in addition to rules above, CA RPC forbids a L from threatning to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute
Duties & bounds of a L's representation

Fairness to opposing counsel
under the RPC, the L must not

(i) unlawfully obstruct another party's access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidentiary value

(ii) falsify evidence

(iii) knowingly disobey an obligation under the rules of a tribunal

(iv) in a pretrial procedure, make frivolous discovery requests or fail to make reasonably dilligent efforts to comply with proper discovery requests by an opposing party

in trial, allude to any matter that the L 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 W, or state person opinion as to justness of cause, culpability of civil litigant, or guilt or innocence of the accused
Duties & bounds of a L's representation

avoiding improper conduct with jurors and the court
a L must not:

(i) seek to influence a judge, prospective juror, or other official by means prohibited by law

(ii) communicate ex-parte with such a person except as permitted by law or court order or

(iii) engage in conduct intended to disrupt a tribunal
Termination of the L-C relationship

Mandatory withdrawal
withdrawal is mandatory os representation must be declined if

(i) the representation will result in violation of the RPC or other law

(ii) the L's physical or mental condition materially impairs the L's ability to represent the client

(iii) the L is discharged
Termination of the L-C relationship

Permissive withdrawal
a L may withdraw from representing a C if

(i) withdrawal can be accomplished without material adverse effect on the interests of the C

(ii) the C persists ina course of action involving the L's services that the L reasonably believes is criminal or fradulent

(iii) the C has used the L's services to perpetrate a crime or fraud

(iv) the C fails substantially to fullfill an obligation to the L regarding the L's services and has been given reasonable warning that the L will withdraw unless the obligation is fulfilled

(vi) the representation will result in an unreasonable financial burden on the L

(vii) other good cause exists

in CA, may not withdraw for reasons (i) (iii) and (vi)
Termination of the L-C relationship

When a L must continue representation
when ordered to by tribunal, not withstanding good cause for termination
Termination of the L-C relationship

Protection of C's interests on Termination
upon termination of representation, a L must take steps to the extent reasonably practicable to protect a C's interests
L's responsibilites to Legal Profession

L's conduct while not in practice
L's acting in their private business or personal activities are still bound by professional standards of conduct and can be disciplined for conduct violating such standards
L's responsibilities to Legal Prof

Political contributions to obtain gov't employment
a L or firm must not accept gov't legal employment or a judicial appointment if the L or firm makes a political contribution for the purpose of obtaining such employment or appointment


(i) for uncompensated services

(ii) made on the basis of a L's experience and following a process that is free from influence based on on political contributions or

(iii) made on a rotating basis from a list compiled without regard to political contributions
L's responsibilities to Legal Prof

Judicial and Legal officials
a L must not make a statement that the L knows to be fale or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory or public legal officer, or of a candidate for election or appointment to judidialor legal office

a L who is a candidate for judicial office must comply with the applicable provisions of the code of judicial conduct
L's responsibilities to legal prof

special role of the public prosecutor
the prosecutor in a criminal case must:

refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause

make reasonable efforts to assure that the accused has been advised of the right to counsel and been given reasonable opportunity to obtain counsel

not seek to obtain from an unrepresented accuser a waiver of important pretrial rights such as the right to preliminary hearing

make timely disclosure to the defense of all evidence or info known to the prosecutor that tends to negate the guilt or the accused or mitigate the offense
Special role of the public prosecutor continued
exercise reasonable care to prevent investigators or other persons assisting the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making

not subpoena a L to present evidence against a C unless the prosecutor reasonably believes the info is not privileges, the evidence is essential, and there is no feasible alternative

refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused
Reporting Prosessional Misconduct
Under RPC, a L who knows that another L has committed a violation of the RPC that raises a substantial question as to that L's honesty or fitness as a L in other respects must inform the appropriate professional authority
Reporting Professional Misconduct

California reporting requirements
CA has no ethics rules that requires a L to report misconduct by another L or judge. Instead, CA lawyers are required to report "themselves" to the State Bar when:

sued for malpractice 3 times in 12 months

found civily liable for fraud

sanctioned more then $1,000 (except for discovery sanctions)

charged with a felony

convicted of certain serious crimes

disciplined in another J

Deck Info