Professional Responsibility Attack Sheet for the California Bar Exam

PROFESSIONAL RESPONSIBILITY

Method: (1) identify the duty; (2) identify the breach; (3) identify what the lawyer should have done.

1. Duties to the Client

1. The duty of loyalty: The atty must exercise her professional judgment solely for the benefit of the client, free of compromising influences and loyalties.

   1. Concurrent Conflicts: An atty must not represent two clients with conflicting interests unless: the atty reasonably believes she can represent everyone effectively despite the conflict AND each client consents in writing after consultation (potential v. actual conflict).

   2. Conflicts between lawyer and client:

      1. Atty may enter into business with a client only if: (1) the terms are fair to the client (2) fully disclosed in understandable writing, (3) opportunity to consult an outside lawyer;(4) client consents in writing.

      2. Loans: CA – may loan money to your client in all matters as long as there is a written I.O.U. ABA – no financial assistance for clients unless indigent client.

      3. Atty must not solicit a substantial gift from a client.

      4. But, may accept a gift which meets general standards of fairness.

   3. Conflicts due to third party interference: Atty’s sole duty is to her client, not any 3^rd party

      1. Atty must not accept compensation from a 3^rdP if it interferes w/ representation.

         1. Note: in CA, insured and insurance co. are joint clients. Must see that neither party is disadvantaged by the common representation. If conflict, inform the insured and invite him to retain separate counsel.

      2. Corp. as client: lawyer must act to protect the interests of the corp.

      3. SOX: Where in-house counsel discovers a co. officer has violated securities laws: (1) You must report the matter to the CEO or chief legal counsel; (2) If they do not respond, you must go to Board; (3) If reasonably necessary to prevent fraud or substantial injury to the org. you may disclose to SEC w/out client consent.

2. Duty of confidentiality: The atty may not reveal anything related to the representation of a client without her consent. Exceptions: Consent, death/substantial bodily injury, to est. claim or defense

3. Duty of competence: must use the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

4. Duty of diligence. Must diligently, promptly, and zealously pursue your case to completion.

5. Duty of communication: You must keep your client informed about the case, including settlement offers, and returning phone calls. Must furnish all information necessary to allow the client to make intelligent decisions in the case. Client must make the key decisions that affect substantial rights.

6. Duty of financial integrity

   1. An atty’s fees should not be unreasonable (ABA) / unconscionably high (CA)

   2. An atty has a duty not to make fee agreements that could curtail service in the middle of the relationship. May withdraw for refusal to pay as long as it would not materially harm the client, and L takes reasonable steps to protect client’s interest.

   3. Contingent fee agreements are permitted, but the agreement must be in writing, and must not be unconscionably high (remember content requirements: %, expenses, before or after)

   4. CA allows referral fees so long as the total fee is not unconscionable and not increased due to the split. ABA prohibits referral fees.

   5. Duty to safeguard your client’s property by labeling and storing it in a safe place.

      1. Money held for the client must be placed in a client trust account.

      2. Duty to keep good records for your client (5 years in CA), to render accountings, notify him of money received on his behalf, and pay promptly money due to him.

1. Duty to withdrawal from representation if: (1) the client fires you; (2) continued representation would violate a law or ethical rule (mandatory); (3) you convince the court there is good cause, or if it’s FAIR (permissive).

1. Duties to the Court & opposing counsel

1. Duty of Candor

   1. Duty to present facts and evidence truthfully

   2. A lawyer must not knowingly facilitate client perjury.

   3. A lawyer must not falsify evidence.

2. Duty to state the law truthfully – Knowingly making false statements of law to the court is subject to discipline. You have an obligation to be candid about the law, and a duty to cite adverse authority it it’s from a controlling jx. and directly on point.

3. Duty to uphold the law

   1. Duty to prevent your client from causing death or serious injury (permissive)

   2. No duty to reveal a client’s fraud or crimes causing financial loss (Cal. prohibits this)

4. Duty of fairness to opposing counsel

   1. Duty to produce evidence – A lawyer must not unlawfully alter, destroy or conceal evidence. Plus, it’s a crime to destroy or conceal evidence.

      1. Duty not to obstruct access to or tamper with evidence

      2. Duty to turn over incriminating evidence to the proper authorities.

      3. Draw a line between physical evidence and confidential information.

   2. Must not lie or mislead your interests

   3. Must not communicate w/ a party you know is represented w/out consent of his counsel

5. Duty to preserve the impartiality and decorum of the tribunal

   1. Must not talk to any prospective or empanelled juror

   2. No chicanery – referring to inadmissible material, alluding to matters unsupported by the evidence, asserting personal knowledge of facts at issue.

   3. Refrain from abusive or obstreperous conduct, belligerence, or theatrics.

   4. Duty not to file frivolous claims – cross-over w/ torts – abuse of process, malicious pros.

6. Duty to expedite cases

   1. CA: must not delay cases to harass an adversary for personal gain/convenience

   2. ABA: affirmative duty to expedite cases.

7. Special Duties of Prosecutors

3. Duty to the Profession

1. Duty to avoid unauthorized practice of law: Cannot assist non-lawyers in the practice of law – anything that calls for the professional judgment of a lawyer.

2. Duty to report misconduct

   1. CA: No duty to report another’s violation, but duty to self-report. Plus, duty to do something to prevent a fellow firm member’s violation if you know about it.

   2. ABA: duty to report another’s violation if it raises a substantial question as to that person’s honesty.

3. Duty to avoid false or misleading advertisements. The 1^st Am allows the gov to regulate commercial speech which is misleading, deceptive or untruthful.

4. Duty to not improperly solicit clients. An attorney may not seek professional employment for pecuniary gain by initiating a live or telephone contact with a prospective client with whom the lawyer has no prior professional relationship.

   1. A lawyer may send prospective clients targeted letters if they are facing a specific legal problem, as long as they are truthful and non-deceptive. If seeking fee, must (1) clearly label “advertising material,” (2) identify a lawyer who is responsible, (3) keep for 2 years