Professional Responsibility

FIRAC: look for fact triggers, identify every major duty lawyer has to each client, find conflicting duties, resurvey for duties to public/profession. 

A lawyer has a duty not to reveal anything related to the representation of a client without her consent. Applies regardless of whether the client has requested that info be kept confidential. Attaches even without an a-c relationship. And disclaimers must be crystal clear. 

1) client consents (you have implied consent to reveal info nec. to render your legal services), 2) defending yourself when your CL sues for malpractice, brings disciplinary action against you, or doesn't pay, forcing you to initiate suit. Info nec. to establish your defense, 3) you reasonably believe it will prevent death or substantial bodily harm (CA, talk them out) permissive 4) fraud or financial injury if he is using your services (not in CA)

No conflicts of interest

1) Reasonably believe you can rep everyone effectively (CA does not require objectively reasonable), 2) you inform each affected CL, 3) CL consents, confirmed in writing.

1) Opposing sides of same matter (imputed) 

Rarely, a representation adverse to a current client requires all clients consent.

Fine unless either would be disadvantaged, in which case you need consent. 

Prevents significant risks. These potential conflicts generally require disclosure and consent. E.g.'s: a corp and any of its directors, officers, shareholders, or employees; both spouses in an uncontested divorce or drafting wills.

You cannot take on a CL with interests materially adverse to a former client without the former's client consent.

Since imputed disqualification applies, we ask: is the matter substantially related or the same and do any remaining lawyers have confidential information. 

Used when you move to a new firm. Your conflicts will not be imputed if:

Gov lawyer who personally and substantially worked on a matter may not work on the same matter at the firm. In this case: screening, no fee, notification.

1) Gifts--cannot solicit and cannot draft if donee is you are close relative 2) cannot limit malpractice liability (settle only after written advice to consult with outside lawyer first) 3) publication rights (general v. hollywood rule-judge approve that CL clearly understands and consents) 4) loans, non under ABA, in CA, written loan agreement, 5) no using confidential info in a way adverse to CL 6) Lawyer as witness (ABA test: uncontested, fees, distinctive value--CA, bench ok, jury need CL consent

1) First discuss over coffee (fair to the client, disclosed in understandable writing, opportunity for CL to get outside counsel, CL consents *CA written disclosure). 2) start up companies: stock payment acceptable if its fair and reasonable under circumstances known to L when made. 3) non-profit boards allowed, corporate boards discouraged

Your sole duty is to your CL. Someone else can pay with CL's consent.

Under Financial Responsibilties

1) Only with other laywers.

Ok as long as they are not exclusive and you explain the arrangement to the client

Ethical rules apply, even if they aren't law services. You have to tell a client if you refer them to someone else you control that a-c safeguards don't apply. 

You have a duty to safeguard it by labeling it and keeping it in a safe place such as an office safe.

ABA: must disclose in annual filing. CA: must disclose in writing to CL who needs more than four hours of work. 

1) discipline by the Bar, 2) disqualification in the litigated matter, 3) civil malpractice liability. 

Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. 

1) learn it (as long as you can without undue expense or delay) or you can associate with another lawyer

Diligence: duty to zealously advocate for your CL and pursue the case to completion

Not a bus, but should take on a reasonable amount of pro bono work.

CL makes decisions about substantive rights, L makes decisions about legal strategy

Must if 1) continuing would violate a law or ethical duty, 2) physically or mentally incompetent 3) discharged. When you do you must 1) timely notify CL, 2) return all unspent retainer/advance expense money, 3) return all paperwork needed to pursue case, even your work product. In CA only if 1) L knows CL is acting without probable cause or to harass 2) violation of RPC would result, but not of other law. 

Protected under limited commercial speech rights. Ok if 1) gov asserts a substantial interest, 2) regulation directly advances that interest, and 3) narrowly tailored. 

1) No false or misleading. 2) Cannot claim specialization unless you are a certified specialist (CA: education, experience, evaluation, and an examination, ABA: approved orgs). 3) Cannot harrass (targeted mail ok as long as listed ad materials) 4) must be labled ad, dramatization must be disclaimed, identify 1 lawyer responsible, 2 years of records

In person. ABA: real time internet. CA, not. "May not seek pecuniary gain by initiating live or telephone contract with a prospective CL that you don't have a relationship with or with whom you have no prior business or familial relationship."

You cannot engage in ethical conduct involving dishonesty, fraud, deceit or misrepresentation. These duties can trump conflicting duties of confidentiality and loyalty to your client. 

You must refuse to make a false statement of material fact or offer evidence you know is false to a tribunal or fail to correct a false statement of material fact or law you previously presented. 

Civil: must refuse to call Criminal: 5A right to testify. 6A effective assistance of counsel. So you must take reasonable remedial measures. 1) Try to convince, 2) w/d, 3) ABA: tell the judge, CA* allow to testify in narrative fashion.

1) You must not suppress evidence that you or your client has a legal obligation to reveal or produce. You must not obstruct access to or tamper with fruits or instrumentalities of the crime. (Line b/w physical evidence and info). 2) L can be compelled to testify as to the original location or condition of evidence that she moved or altered. So look but don't touch. 3) Can retain evidence for a reasonable time to prepare case and conduct tests as long as they don't alter the evidence. 

Must timely disclose evidence favorable to the defense. This ethical duty exceeds Const. brady obligation, requiring disclosure regardless of admissibility or impact on the outcome. 

Must volunteer relevant info, including harmful facts

No knowingly making a false statement of law to court, and if law is controlling and on point you have to cite it

If continued representation would require you to commit a crime or assist in a crime, you must withdraw. If you client is continuing in illegal acts but you are not, you may withdraw.

Must behave honestly in all dealings--about upholding the dignity of the profession. Must act to promote public confidence. 

Must stop reading and return.

If represented, not w/o laywers consent (any person. If its a corporation, cannot talk to officer, director, managing agent, and anyone who's statements would bind the org or constitute an admissible on its part. 

1) No out of court statements that you reasonably should know could have a substantial likelihood of prejudicing the case. Unless in response to recent publicity not self initiated.

TEMPORARY: 1) Outside lawyer may give and get paid for consulting services 2) Pro hac vice from court 3) mediation or arbitration that arises out of her practice in home state 4) temporary practice in CA if it is reasonably related to home state practice

PERMANENT: If admitted in one jx and not disbarred or suspended in any other if 1) L is salaried employee of only client (in house) OR 2) legal services authorized by local or federal law.

ABA: 1) orders or ratifies conduct involved or 2) L is partner/manager at firm or has direct supervisory authority over other lawyer and knows of conduct at a time when its consequences can be avoided or mitigated and does not take reasonable remedial action. CA DIST. No assisting in, soliciting, or inducing an ethics violation. Other firm members (much broader) can be disciplined if they approved it or knew about it and did nothing to prevent it. 

Cal RPC differs in that it does not require seller to cease practicing in geographic area (ABA does), notice to client rules more complicated, does not permit sale of "area of practice" (must be substantially all). In both, CL fees cannot increase, must be sold to lawyers, 

1) No words or symbols that suggest quick cash or settlement, 2) no impersonations or dramatizations without disclosure 3) no contingent fee offers that don't warn CLs they must pay litigation costs if that is the arrangement.

1) potential CL in hospital or suffering from physical or mental stress, 2) mailings that are not clearly labeled as ads, 3) testimonials without disclaimer/GWP

Rep. of a CL is directly adverse to the interest of another CL or there is a significant risk that the rep of a CL will be material limited by the L's personal interests or by the interests of another CL, former CL, or 3rd person

ABA: CL must be independently represented

ABA: Only if prior.

1) If L becomes aware of credible evidence of violation she must report to CLO. Similar material violation under fed. or state law. 2) CLO must take all reasonable steps to get CL to take appropriate response. 3) If no appropriate response, must report to board, audit committee, or outside directors 4) May reveal to SEC violations that could cause substantial injury to inventors, lawyers services used, or CL perjury (conflicts with CA law!). 5) If fired, may report firing to board (retaliation)

1) Wont have materially adverse effect on CL (no CA) 2) CL persists in course of action involving L services that L reasonably believes is criminal or fraudulent 3) CL has used services to perpetrate crime/fraud (no CA, must be continuing) 4) CL's repugnant or fundamental disagreement course of action 5) CL fails to fulfill obligation 6) Unreasonable financial burden on L (no CA) 7) other good cause

1) PC, 2) efforts to ensure right to counsel 3) no waivers of important pre-trial rights from pro se 4) timely disclosure of all potentially favorable evidence/promptly if reasonable likelihood 5) reasonable care to prevent extrajudicial statements prosecutor would be prohibited from making, 6) not subpoena OC unless no feasible alternative, 7) refrain from extrajudicial that could heighten public condemnation 8) reasonable efforts to investigate possible wrongful convicts.