Legal Three

Professional Responsibility Outline for the California Bar Exam

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  1. Duties generally: “Clients Love Fierce Counsel; Courts Feel Differently”

    1. To the Client

      1. Confidentiality

      2. Loyalty

      3. Financial Responsibility

      4. Competence

    2. To Court, Adversaries, Legal Profession, Third Parties, Public

      1. Candor/Truthfulness

      2. Fairness

      3. Dignity/Decorum

  1. The Duty of Confidentiality to the Client.

    1. Attorneys are prohibited from using or revealing anything related to the representation of a client w/o her consent.

      1. Scope – duty applies regardless whether the client requested info to be kept confidential or whether its revelation might harm the client – applies to all info even if not in the course of the relationship

      2. Timing – duty can attached before an attorney-client relationship is formed, or even if it is never formed. If no employment results, the party seeking to disqualify an atty bears the burden of proving confidences were actual impaired

        1. Duty lasts indefinitely

      3. Exceptions

        1. Express consent after consultation.

        2. Implied Consent – when revelation is necessary to render legal services

        3. Crimes –

          1. Death or Serious Bodily Injury – under ABA, atty may reveal info necessary to prevent the act if he reasonably believes disclosure is necessary to prevent a crime likely to result in reasonable certain death or substantial bodily harm

            1. CA – may reveal, but must first, if reasonable in the circumstances, make a good faith effort to persuade the client not to commit the act, and inform the client of your decision to reveal his confidences

          2. Fraud – under ABA, no duty to reveal fraud unless to do so would constitute assisting in the crime w/atty services (i.e. financial crimes).

            1. CA – no fraud exceptions, cannot reveal

        4. Atty Defense – may reveal client confidence to establish a claim or defense in a malpractice action, action for recovery of fees, or disciplinary action

        5. If compelled by law or final court order.

    2. Attorney-Client Privilege. (lasts indefinitely)

      1. Testimonial privilege, but more narrow

      2. Allows client to refuse to testify and prevent L from testifying re confid info b/w them/agents.

      3. Applies only to confid communications made during AC relationship.

      4. Applies regardless of the source of the info, and prohibits disclosures that could reasonably lead to discovery of info

      5. Exceptions:

        1. Future crime/fraud

        2. Comm. relevant to issue of breach arising from AC relationship

        3. Civil lit b/w two former joint clients

        4. Evidence re competency/intention of client for purpose of will or inter vivos transfer

        5. CA: L may disclose intention to commit a crim act that L reasonably believes likely to result in death/substantial bodily harm to prevent client from committing the act.

  1. The Duty of Loyalty to the Client.

    1. Duty to Avoid Potential or Actual Conflicts of Interest – if an interest to you, another client, or a third party materially limits or is adverse to loyal representation, the atty has a conflict of interest

    2. Imputed disqualification – an atty and all the members of his firm share conflicts

      1. Includes any group of attys that work together closely or share responsibilities (e.g. private firms, corp law depts.)

      2. CA – follows rule for disqualification, but does not subject an atty to discipline for imputed conflicts.

      3. Exceptions: former/current govt. employees, work for adverse parties at a previous firm, purely personal interest of conflicted lawyer, or sexual relationship w/ client – need not disqualify colleagues – in these cases ethical wall may make rep reasonable by blocking off any contact on the matter w/the atty w/the conflict

      4. If conflicted L leaves firm, imputed DQ. if:

        1. Matters are substantially related AND any remaining L has confid, material info.

    3. Must not take representation with adverse conflict unless:

      1. Reasonable belief that everyone can be represented effectively,

      2. Rep does not involve the assertion of a claim by one client against the other,

      3. Client(s) informed,

      4. Client(s) give consent

      5. CA – Must be in writing.

    4. If conflict emerges after representation begins:

      1. Disclose potential/actual conflicts as they arise

      2. Get further consent

      3. And withdraw if consent is not reasonable

    5. Short Term Legal Services – if atty is under a court, agency, or non-profit program – atty is responsible only if he knows of a conflict

    6. Remedies: refuse to take case, advise multiple clients to get separate counsel, ethical wall (when imputed disqualification), withdraw

    7. Conflict b/n Lawyer and Client.

      1. Business Transactions or Adverse Interests – L may enter into business w/ client or obtain an interest adverse to client if: terms are fair to client, fully disclosed in understandable writing, client has opportunity to consult outside counsel, and client provides written consent.

        1. Firm may accept payment in the form of shares of stock in a client’s company if equal to the services provided, interest has been valued reasonably and the transaction is documented

        2. Likely impermissible if investment represents a major asset that might distort the firm’s advice

      2. Interests in Subject Matter of Litigation – L should not become interested in subject matter of litigation. (NO CA counterpart)

        1. No proprietary interest in the action.

        2. Contingent fees allowed unless family law or criminal law.

        3. Attorney liens on prop allowed.

      3. Board Service – there is no automatic bar to serving, but it is strongly discouraged, as it is likely to compromise duties of loyalty and confidentiality

      4. Limiting Liability – atty cannot limit client’s right to report atty for ethical or other professional violations; cannot limit malpractice liability, unless the client is ind. rep’d

        1. CA – cannot limit liability in any circumstance

        2. If a client makes a malpractice claim, atty can only settle w/the client after written advice to the client to consult an outside atty first

      5. Publication Rights Contracts – ABA – allowed, but not until representation is over

        1. CA – discourages, but tolerates if the judge is satisfied that the client clearly understands and consents

      6. Loans and Advances – ABA – no financial assistance except for costs and litigation expenses (indigent client), and the advance of expenses in contingent fee case if client promises to repay.

        1. CA – yes, allowed in all matters as long as written; (but prohibits promise of paying client’s debts to gain business)

      7. Use of Information – use or communication of info relating to the rep of a client to her disadvantage and w/o consent violates the duties of both loyalty and confidentiality

      8. Gift to L or L’s Family – cannot solicit a substantial gift from C, or draft legal instrument for C who is not your close relative if provides substantial gift to you or your relative.

        1. CA – only prohibits inducing gift, not drafting instrument.

      9. Close Relationship w/Atty on Other Side (potential conflict). If 2 L’s closely related, must get consent b/4 representing diff clients in same matter/substantially related matter. Not imputed.

        1. Close relations: related by blood or marriage

        2. CA – includes above AND intimates or roommates

      10. Trial Counsel as Necessary Witness – ABA is more restrictive, atty cannot serve as counsel and witness in the same trial unless appearance as a W will not prejudice the client and (1) the testimony is uncontested or re the nature and value of services rendered, or (2) if atty’s distinctive value to the case means that w/d would impose substantial hardship to the client

        1. CA – prohibits attys from testifying only in jury trials if the client provides written consent

      11. Sexual Relations

        1. L must not have sex w/ C unless had relationship b/4 A/C relationship.

        2. CA – L may not: demand sex as condition of representation, enter into sexual relations by coercion/undue influence, or represent a client incompetently b/c of sex relationship

        3. Not Imputed

    8. Conflict Between Clients: generally, atty may rep clients w/potential conflicts w/proper consent, but it is rarely proper if their interests are in actual direct conflict

      1. Opposite Sides of the Same Matter/Imputed DQ

        1. Rarely reasonable – there is a direct conflict, unreasonable to rep both

        2. Hypo – your law firm reps Texaco in labor matters, although you have done no work for it. Mike, a former Texaco EE asks you to help him sue Texaco for cutting off his benefits NO, imputed DQ, interests are in direct conflict

        3. CA – L prohibited from taking claim adverse to current C irregardless of a substantial relationship b/n 2 cases

      2. Opposing Present Clients’ Interest – only allowed if reasonable consent of both clients

        1. Hypo – firm’s only contact w/Texaco is rep’ing it in a securities action, can you take Mike’s EE case? Not unless both clients consent

        2. CA – statutory exception, CA does not extend this prohibition to rep’ing a policyholder and his insurance co as joint clients, where the insurer’s interest in each matter is only as an indemnity provider – atty rep’s BOTH and owes duties to both

          1. If actual con arises, atty must advise insured to get alt atty

      3. Two Clients w/Inconsistent Positions – atty is arguing for and against same issue on two different cases – allowed if both clients consent, but if either rep would be disadvantaged, must w/d

      4. Multiple Clients, Same Matter – reasonable belief all can be represented effectively, disclosure of conflicts, get consent from all.

        1. Crim matter: almost always violates duty

          1. May also impede 6th A right to effective assistance

        2. Civil: L may take multiple representations or act as intermediary if: reasonable belief all can be represented effectively, disclosure of conflicts and disadvantages to all, consent from all, and it is reasonable.

          1. Corp and directors, officers, EE, SHs

          2. Both spouses in a divorce or will

        3. Remedy: if actual conflict arises, L must w/d from both representations and advise both to get separate counsel.

      5. New Clients in Matter Related to Current/Former Client – if confidential info from a former client might be relevant to work on a new client’s matter, may violate duty of confidentiality as well as loyalty to former client

        1. If potential COI, cannot take new C w/o reasonable permission of both.

        2. Same or substantially related matter – Get consent.

        3. At new firm, atty’s conflicts will not extend to colleagues if atty (1) is timely and effectively screened, (2) receives no direct part of the fee, (3) gives notice, and (4) there are periodic certifications of compliance w/these conditions

      6. Former Govt. Atty now in Private Practice – If L worked personally or substantially on the same exact matter then cannot work on matter later in private practice – may be allowed w/informed consent by govt. agency

        1. Imputed DQ – other members of firm can rep if atty (1) is screened off, (2) does not share in any part of the fee, and (3) govt. employer is informed

        2. Judicial Officers – same rules apply to clerks, judges, arbitrators

        3. CA – no counterpart for govt services, but prohibits prosecutors from later participating on defense side of same case.

    9. Conflicts Due to Third Party Interference.

      1. General rule: Duty to client, not third party.

      2. Compensation from 3p for atty’s services is permitted only if (1) client consent, (2) no interference, (3) does not compromise confidential info

      3. Organizational clients. Represent organization – atty must act in the best interest of the entity even if an officer or EE acts to the contrary

        1. Fed Requirements for Securities Lawyers:

          1. If atty discovers violation of securities laws, must report matter to the CEO or chief legal counsel of the co. If they do not respond, atty must go to the Board or the highest authority in the co. Finally, if atty reasonably believes it is necessary to prevent fraud, perjury, or substantial injury to the org or investors, or to rectify financial injury from a violation that involved atty’s services, atty may disclose confidential info to the SEC w/o client consent

        2. ABA – now mandates “reporting up” and permits limited “reporting out”

        3. CA – still prohibits outside reporting, fed preemption means a CA atty may comply w/fed law

  1. The fiduciary duties to the client.

    1. Attorney Fees – must explain how fee is computed, what services are covered, and lawyer and client duties.

      1. CA – fees may not be unconscionable, requires agreement to be in writing unless: fee < 1000, or it is corp client, or routine services for regular client, or emergency/impractical.

    2. Contingent fee

      1. Must be in writing, signed by client, and must state:

        1. Percentage going to attorney

        2. What expenses are deducted from recovery, and

        3. Whether percentage is taken before of after expenses.

      2. Not allowed in domestic relations or criminal cases

      3. CA – agreement must state how non-contingent fee work will be paid, and notice that fees are negotiable.

        1. CA is silent on crim cases and allows in divorces provided the fee arrangement will not encourage breakup

    3. Fees

      1. ABA – Fees must be reasonable (taking into account labor, novelty, difficulty, skill and timing required, experience of L, fee arrangement, etc.)

      2. CA – Fees must not be unconscionably high, requires atty to participate in arbitration if client requests it

    4. Fee Splitting –

      1. Within firm – OK.

      2. Outside firm

        1. ABA – No referral fees allowed, but fee splitting allowed if:

          1. Total fees reasonable, client consents, and fee proportional to work done (or each L assumes joint responsibility).

        2. CA – Total fee not unconscionable, written disclosure and consent in writing (no requirement of proportionality).

          1. Referral fee allowed, but cannot increase total fee b/c of split, not unconscionable, and C knows all terms and consents in writing.

      3. With non-lawyers – not allowed except for death benefits, fees passed on as salaries and pensions to non-lawyer EEs, and sharing of court-awarded legal fees w/a non-profit org

    5. Referral Services – atty may pay the usual charges of a qualified lawyer referral service

    6. Reciprocal Agreements – allowed w/other professionals if they are not exclusive, and arrangement is explained to the client

    7. Partnership with Non-lawyers when business is engaged in practice of law – Not allowed – non-lawyers cannot be partners, SHs, officers, or control or direct a lawyer’s professional judgment

    8. Disclosure of Professional Liability Insurance – ABA allows admin suspensions for failure to report whether atty carries insurance on annual registration statement

      1. CA – requires, at the time of engagement, written disclosure of the absence of insurance directly to any client foreseen to nee more than 4 hrs of work

    9. Client Trust Accounts.

      1. Duty to safeguard property of client (label it and store in safe place)

      2. Keep money in client trust accounts (individual interest bearing)

        1. Pooled trust accounts ok for smaller funds held for short period. (must be checking account) – interest (IOLTA) will first pay bank’s service charges and remainder goes to state bar

      3. No commingling or borrowing of funds

      4. Fee Disputes – must withhold the disputed portion in client account until resolution of the claim

      5. Duty to keep good records, render accountings, notify of $ received on his behalf, and pay promptly money due.

        1. CA – keep records for 5 years and make them available to state Bar for audits.

  1. The Duty of Competence and Care to the Client

    1. Duty to Render Competent Legal Services to Client. Must provide the legal knowledge, skills, thoroughness and preparation reasonably necessary for the representation.

      1. Remedy –

        1. Disqualification as counsel in litigated matter

        2. Professional discipline by Bar.

        3. Civil Malpractice – May use rule violation as evidence of malpractice.

          1. P must prove a legal claim (Breach of K or tort)

      2. If not familiar w/ relevant law, L may represent C if:

        1. L can learn about it w/o undue expense/delay to C, or

        2. L associates w/ another L competent in the area.

      3. Malpractice – if client brings a civil action in negligence, must show breach of the duty of care, which for an atty is the skill, care, and judgment that a reasonably prudent general practitioner in the region would have used in the circumstances

      4. Emergency Exception – can assist client in unfamiliar area of law in emergency – but assistance cannot exceed what is reasonably necessary to meet the emergency

    2. Duty of Diligence – Diligently, promptly, and zealously pursue case to completion.

    3. Duty to Communicate – Keep client informed about case including settlement offers and returning phone calls.

      1. Joint clients – All clients must consent to settlement offer b/4 L accepts.

    4. Duty to Accept Representation – general rule, atty is free to accept or reject

      1. Atty should accept, as part of his duty to the public and profession: (a) the case of the defenseless or oppressed, and (b) a fair share of work w/o charge (50 hrs ABA rec)

      2. Atty should not accept if he is not in the physical or mental shape to be comp

    5. Scope of Representation – client makes decisions about her substantive rights (e.g. whether to testify, settle) – lawyer makes decisions on procedure and legal strategy

      1. Scope does not include assisting client in criminal conduct or advising client on how to act illegally

    6. Duty to Withdraw

      1. Client may terminate at any time for any reason.

        1. Recovery in quantum meruit for services rendered if contingency fee.

        2. Refusal of settlement offer as grounds to WD is ok.

      2. Mandatory withdrawal– Must withdraw if:

        1. Continuing would violate a law or ethical rule (i.e. filing a frivolous claim), L’s physical or mental shape would render him incompetent, or L is discharged.

        2. If C is using L’s services to commit crime/fraud, L must w/d.

      3. Permissive withdrawal – may w/d from a case if atty convinces crt there is good cause, and w/d will not cause undue delay or disruption, or if it is fair:

        1. WD can be accomplished w/o material adverse effect on interests of C,

        2. Financially burdens L,

        3. Act of illegality or use of L’s services to commit a past crime or fraud.

        4. Insists on pursuing an objective that is repugnant or imprudent to L

        5. Refuses to fulfill an obligation after L said he would w/draw if C didn’t comply

        6. Other good cause exists

      4. Court may deny if undue delay or disruption.

      5. CA – L may not w/d b/c of (a), (c), or (b); but under CA, may w/d if breach of K to pay expenses/fees.

      6. Procedures for withdraw.

        1. Timely notice to C.

        2. Promptly return unspent fees and expense advances, and all papers and property of the client including work product.

        3. Even if they have not paid.

        4. CA – prohibits withholding clients materials for money

  1. The Special Duties of the Prosecution – have higher ethical obligations

    1. Basic duty is to seek justice – requires:

      1. PC

      2. Protect accused’s right to counsel including not subpoenaing L to present evidence unless essential and unprivileged

      3. Timely disclosure of exculpatory evidence.

      4. Exercise care to avoid prejudicial pre-trail publicity.

    2. Must not make comments that have a substantial likelihood of heightening public condemnation of the accused

  1. The Duty of Candor to the Court – lawyer prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation – can override conflicting duties of confidentiality and loyalty to client

    1. Duty to State Law Truthfully.

      1. Cannot knowingly make a false statement of law to the court.

      2. Duty to be candid about the law.

        1. Must cite adverse authority if it is from controlling jurisdiction and it is directly on point.

        2. But no duty to volunteer harmful facts, opposing side has fact-finding tools at its disposal

      3. No frivolous claims/defenses

    2. Duty to Present Facts and Evidence Truthfully.

      1. Must not make a false statement of material fact or offer evidence known to be false to the tribunal, or fail to correct false statement or material fact that L previously presented to tribunal.

        1. Remedial Measures if false evidence is offered – first speak w/client or W to warn them of duty to reveal and seek cooperation in correcting, if that fails, atty may ask for w/d – as a last resort an atty must disclose enough info to crt to set matter straight, even if that means disclosing info protected by A/C priv. or confidence

      2. Witnesses – Must not counsel or assist witness to testify falsely or to become unavailable. May pay W for: travel, meals, lodging, time lost from job, and reasonable fees for expert W (fee must not be contingent on content of testimony), unless prohibited by local law.

        1. If atty learns W will commit perjury, must refuse to put him on the stand

        2. If atty suspects, but only has a reasonable belief that testimony is false, may put W on the stand

      3. Client Perjury – may not knowingly facilitate perjury.

        1. Criminal law cases – Clients have 5th Amendment right to testify, 6th Amendment right to assistance of counsel.

        2. Civil case – can refuse to allow client to testify if he will present false evidence.

        3. Steps if client intends to commit perjury – must take reasonable remedial measures

          1. First: Counsel client to testify truthfully or not to take stand.

          2. Second: ABA – withdraw.

            1. CA: withdrawal is permissive.

          3. Third:

            1. ABA (maj) – Must disclose to judge (Const. right to counsel and duty of confidentiality do not protect perjury)

            2. CA – allow client to testify in narrative fashion, but do not further the deception – Atty cannot use false statement from testimony in his closing

        4. If D tells you he lied after he testified, counsel him to recant and do no further deception, but obligation to reveal or correct ends at conclusion of proceeding.

    3. Duty to Produce Evidence

      1. Must not suppress any evidence that atty or client has a legal obligation to reveal or produce, regardless of duty of loyalty

      2. Must not obstruct access to or tamper w/fruits or instrumentalities of a crime

      3. If reasonably certain that something is a fruit or instrumentality of crime, L must turn it over to authorities (also applies to cash for legal services); must turn in w/in reasonable time.

      4. Instrumentalities of crime NOT insulated from AC privilege (although comm. made in conjunction is)

      5. If C tells L where something is (i.e. gun/drugs), as long as L does not touch, L does not have to reveal it to authorities

        1. L or his agent may be compelled to testify re the original location or condition of evidence he moved or altered.

        2. But may not reveal client source of info

    4. Ex Parte Proceedings

      1. L must reveal relevant info – duty of candor to court and fairness to absent adversary

    5. Duty to Uphold the Law

      1. Assisting in a Crime – if continued rep would require atty to commit or assist in committing a crime, he must w/d

      2. Preventing Client from Committing a Crime – if client is going to commit a crime reasonably likely to result in reasonably certain death or substantial bodily harm, disclosure of confidences is permissive

        1. CA – must also follow safeguards of trying to dissuade and informing client

      3. Financial Loss – ABA permits

        1. CA – prohibits disclosure

  1. The Duty to Preserve Dignity & Decorum of the Tribunal.

    1. Duty to Expedite Cases.

      1. ABA – L’s have affirmative duty to expedite.

      2. CA – Must not delay cases to harass adversary or for personal gain/convenience

      3. Duty to follow, valid procedures rules or crt orders, unless making a good faith challenge

      4. Must not abuse or obstruct discovery process

    2. Duty to Preserve Impartiality and Dignity of Tribunal

      1. Atty may not attempt to influence party improperly

        1. B/4 and during trial, must not talk to prospective or empanelled jurors. But, after trial may interview as long as no harassment or influence of future jury service.

          1. CA – must tell juror they have a right to refuse an interview and have a copy of any resulting crt declaration

    3. No Chicanery (trickery): cannot refer to inadmissible or irrelevant material

    4. Duty to Avoid Disruptive Conduct – refrain from abusive conduct or theatrics

  1. The Duty to Witnesses, Third Parties, Public & Press

    1. Fairness – atty has a duty to behave honestly in all dealings whether or not engaged in the practice of law – must act to promote public confidence in the integrity and efficiency of the legal system and profession

    2. May Not Violate Rights of Third Parties – to get evidence, or use means w/ no purpose but to delay, burden or embarrass.

    3. Cannot instruct person other than a client to refrain from giving info to another party unless person is relative or EE of client

    4. Threats to Bring Criminal Charges to Gain Advantage in Civil Case

      1. ABA – allows, provided that the criminal and civil matters are closely related and both the civil and criminal charges are warranted

      2. CA – prohibited from threatening crim prosecution to gain advantage

    5. Communication w/Represented People – unless authorized by law, must not communicate w/person atty knows is rep’d by counsel on subject matter of the representation, unless consent obtained from counsel.

      1. Corporate Representation

        1. Consent required to interview management or anyone whose statement may bind the company.

        2. Former employees – permission needed only if they had extensive access to confidential and privileged information.

    6. Documents Sent Inadvertently – once atty knows it was sent inadvertently, must stop reading and notify opposing counsel immediately – must not copy, disseminate, or use to disadvantage – will be disqualified

      1. Atty’s obligation to safeguard client’s confidences includes reasonable electronic security and steps to prevent disclosure and to rectify errors

    7. Communication w/Adversaries – must not lie or mislead

    8. Dealing with the Press – may not interfere w/D’s right to a fair trial

      1. May respond to press and public’s right to know, but must avoid out of court statement that atty reasonably should know will have a substantial likelihood of materially prejudicing the case.

        1. Unless:

          1. Matters are in the public record,

          2. Routine booking info,

          3. Warning the public/asking for help

          4. Informing them of ongoing investigation,

          5. Statements required to protect client from substantial undue prejudice from recent publicity not self-initiated.

      2. Prosecutors must not make comments that have a substantial likelihood of heightening public condemnation of the accused

  1. The Duty to Avoid False and Misleading Advertising.

    1. State may regulate pursuant to First Amendment Rights (under commercial speech doctrine, using intermediate scrutiny)

      1. Test – Truthful, non-misleading speech may be regulated if:

        1. the government has a substantial interest

        2. the regulation directly advances that interest

        3. the regulation is narrowly tailored to accomplish its objective.

    2. Advertising.

      1. Must not be false or misleading.

        1. Never mislead or omit material info

      2. Unjustified expectations or unverified complaints may be prohibited.

      3. CA – Presumes improper any ads that have guarantees, warranties or predictions of results.

      4. No testimonials or endorsements unless express disclaimer that they are not guaranties, warranties or predictions.

      5. Claims of legal specialties

        1. Can explain fields of practice

        2. Claims of legal specialty ok only if atty has certificate is specific legal subject issued by state bar, or private org approved by ABA or identified as one not approved by the state.

          1. CA – specialization req. – experience, examination, education, and evaluations

      6. May not improperly claim partnerships or affiliations.

        1. Presumptive violation for private practitioner to state/imply a relationship w/ a govt agency or non-profit org.

      7. May not imply or state ability to exert influence.

      8. Every ad must: be labeled as advertising (if applicable, a dramatization or impersonation notice too), identify at least one lawyer responsible for contents, and records must be kept for 2 years.

      9. Must not harass or solicit s/o who indicates they want to be left alone

      10. CA – presumptions (presumed to be violations unless L can prove otherwise): (i) comm. to a potential client in hospital or physical/mental stress, (ii) mailings that seek fee paying work and not labeled as advertising, and (iii) comm. w/ testimonials or endorsements w/o disclaimer that they are not a promise about results.

  1. The Duty to Not Improperly Solicit Clients.

    1. Rule: Do not seek professional employment for pecuniary gain by initiating a live, telephone or real time electronic contact w/ a prospective client w/ whom you have no prior professional, personal, or family relationship. (prior client/family is ok)

    2. Pro-bono solicitation is ok.

    3. CA presumption: Scene of accident or in-route to medical facility are presumed improper. Same w/ comm. to potential clients known not to be in physical/mental state to exercise reasonable judgment

    4. Runners and cappers (agents) cannot do anything that a lawyer cannot do.

  1. The Duty to the Profession.

    1. Lawyers should not engage in dishonesty, deceit, or misrepresentation, including in their private business or personal capacities.

    2. L must not engage in unauthorized/unlicensed practice of law to safeguard public from incompetence.

      1. Only applies if professional judgment is req. – layperson may prepare tax return, broker may fill in blanks on contracts, prepare bk petitions

    3. Multi-Jurisdiction Practices – ABA allows temporary practice for out-of-state lawyer in good standing if: (1) the atty associates w/a locally admitted lawyer who actively participates in the matter, (2) or the services are related to ADR, or (3) crt permission (pro hac vice)

    4. Reporting Misconduct –

      1. ABA: Required to report any other lawyer or judge’s violation of the rules – if conduct raises a substantial question as to that person’s honesty, trustworthiness or fitness as a lawyer.

      2. CA – Self-reporting only, but can discipline atty who knew about violation by firm member and did nothing to prevent it

        1. Atty must self report if he is charged w/a felony, found civilly liable for breach of a fiduciary duty, disciplined in another jxd, or sued for malpractice or sanctioned

  1. The Duty of Subordinate Lawyers.

    1. Unethical action while under supervision of another L:

      1. Clear violation – discipline

      2. Debatable – Supervisor alone is responsible.

      3. Senior partner is always responsible (i.e. he knew of violation and failed to prevent)

      4. Managing partners – must make reasonable efforts to ensure that everyone’s conduct in a firm comports w/rules include non-lawyer assist

    2. CA – L can be liable for merely knowing about fellow firm member’s disciplinary violation and doing nothing to prevent it (liable for inaction).

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