PROFESSIONAL RESPONSIBILITY I. REGULAROTY CONTROL OVER ATTORNEYS & UNAUTHORIZED PRACTICE A) GENERAL SOURCES OF REGULATION 1) State Regulation a.

Authority to regulate legal practice is vested w/i the highest court of JD. b. California has an integrated bar association (all attorneys must join). 2) Federal Regulation a. Federal courts create their own admission requirements. b. Most fed. cts. require only that the att'y be licensed in the state they sit. May grant a 'pro hac vice' license to try a specific case. c. Patent & Trademark att'ys must pass a special exam. d. Fed. att'ys subject to att'y conduct rules in state where practice. 3) California Legal Ethics Rules a. CA att'ys bound by the California Rules of Professional Conduct b. CA att'ys also bound by the State Bar Act, part of the CA Business and Professional Code. B) ADMISSION TO THE LEGAL PROFESSION 1) Citizenship Requirements a. a state may NOT require an attorney to be a US citizen. 2) Residency Requirements a. residency requirements violate the Privileges & Immunities Clause of the Constitution. 3) Character Requirements a. an application must pass the 'Moral Turpitude' Test. Moral Turpitude is conduct contrary to justice, honesty, modesty, or good morals. b. applicant has right to hearing before the bar committee and judicial review if denied license based on moral turpitude. c. rejection of application may not be based on applicant's personal beliefs. d. an applicant must not: 1) knowingly make false statements, 2) fail to disclose a face necessary to correct a misapprehension, and 3) knowingly fail to respond to a lawful demand for info from an admission or disciplinary authority. DISCIPLINARY PROCESS 1) General Substantive Standards a. A lawyer may not: 1) violate the RPC, knowingly assist or induce another to do so, or use the acts of another to committ a violation. 2) commit a criminal act that reflects on dishonesty.

C)

3) state or imply he has the ability to influence a gov't official, or that he can assist through illegal or dishonest means. 4) engage in dishonesty, fraud, or misrepresentation 5) engage in conduct prejudicial to the admin. of justice. 6) knowingly assist a judge or judicial official in violating the rules of judicial conduct. 2) Disciplinary Procedure a. initiated by complaint to state bar. b. this is examined by the grievance committee of the state bar. c. then lawyer has nonpublic hearing before the grievance committee. d. lawyer has right to counsel and to examine witnesses at hearing. e. lawyer has right to invoke 5th amendment. 3) Forms of Disciplinary Sanctions a. disbarrment, suspension, and public or private censure. 4) Effect of Disciplinary Sanction on Other Court Systems a. State Ct. - if att'y disciplined in another state, the current state may make its own determination of effect. Most give some effect. b. Federal Court - no duty to give effect to state ct. decisions. may allow att'y to practice even if disbarred by state. 5) Practice in Multiple States - Choice of Law a. first is jd of where ct. sits, second where conduct occurred unless primary effect is on another jd. D) UNAUTHORIZED PRACTICE OF LAW a. att'y prohibited from practicing in a jd where he is not licensed. b. assisting a person who is not licensed in state in performance of law. c. In CA it is a misdemeanor to conduct the unauthorized practice of law. 1) Limited Exception When Professional Judgment Not Required a. if professional judgment not involved, a nonlawyer may engage in professions that require special knowledge of law. b. a person can always represent themselves. 2) Multi-Jurisdictional Practice a. if not licensed in 2nd state, an att'y may not open an office, engage in practice, or est. a legal practice. b. a lawyer may temporarily practice in state if 1) if assoc. w/ a local lawyer (as adviser) 2) w/ special permission of court, this is as 'pro hac vice' 3) mediation or ADR, if case arises out of state where licensed. c. CA multijurisdiction rules 1) In-House Counsel a. out of state attorney may serve as in-house counsel w/o passing CA bar or MPRE, but must register w/ state and pay dues. b. He may not appear before a CA court or engage in 'pro hac vice'. c. He cannot represent the corp's employees as individuals in CA.

2) Legal Services Attorney a. an out of state legal svc att'y may practice in CA for 3 years w/o passing the CA bar. b. must work under supervision of CA attorney, register, and pay dues. c. lawyer that has failed the CA bar exam in last 5 years not eligible for legal svc. att'y. 3) Out of State Atty & Temporary Practice a. out of state temp practice same as above temp rules. 3) Judges and Law Students a. full-time judges may not practice law. b. law students may not practice w/o att'y supervision. 4) Lawyers Practicing Law with Nonlawyers a. lawyer may not share fees w/ nonlawyers. Duties delegated to paralegals, law clerk, or intern must be closely supervised. 5) Law Firms and Nonlawyers a. law firms may not be partially owned or controlled by nonlawyers in any way. E) LAW-RELATED (ANCILLARY) SERVICES a. lawyers may providing financial planning or account to clients, so long as related to other legal matters. ESTABLISHING A LEGAL PRACTICE FORMS OF PRACTICE 1) Law Firms a. partners, associates, of counsel b. duty to hold client's interests over firms, and duty to provide competence and care. c. law firm name cannot be misleading d. lawyer with public office cannot have name in name of firm or communciations e. multijurisdiction firms must list limits of att'ys only licensed in certain states. 2) Lawyers in Assoc. with Nonlawyers 3) Legal Corporations a. lawyers remain liable for own legal malpratice. 4) Legal Services Organizations

II. A)

B)

RESPONSIBILITIES OF A PARTNER OR SUPERVISORY LAWYER 1) California Rule a. a CA lawyer is prohibited from assisting in, soliciting, or inducing an ethics violation by another person. If one member of a firm commits a disciplinary violation, other members of the firm can be disciplined if they approved the conduct or knew about it and did nothing to prevent it. C) RESPONSIBILITIES OF A SUBORDINATE LAWYER 1) lawyer acting as a subordinate still must obey RPC.

D) E)

RESTRICTIONS ON RIGHT TO PRACTICE 1) cannot restrict, offer to restrict, or enter into an agreement to restrict. SALE OF A LAW PRACTICE 1) Sale of a California Law Practice a. must notify clients b. no restriction on practice in geographic area required, but may agree on a covenant not to practice in a geographic area for a period of time. c. may only sell 'all or substantially all' of practice, not part. - this allows att'y to retain a few long term clients or clients with conflicts. d. client fees cannot increase. INFORMATION ABOUT LEGAL SERVICES BACKGROUND OF ADVERTISING AND SOLICITATION RULES 1) Definitions - Advertising vs. Solicitation a. Advertising - common communication with public at large. b. Solicitation - when att'y contacts an individual with intent to entice individual to hire lawyer. 2) First Amendment Protection a. att'y advertising is commercial speech protected by 1st and 14th amendment. b. commercial speech cannot be misleading, if so then prohibited. c. commerical speech may be limited regulation that serves 1) substantial gov't interest, and 2) materially advances that interest, and is 3) narrowly tailored ADVERTISING 1) Basic Rule - Communications Must Be True and Non Misleading a. communication is false or misleading if it 1) misrepresents the law or fact, or 2) omits necessary info 2) Identity of Advertiser a. must include name and address of at least one lawyer or firm responsible for ad. 3) Payment for Recommending a Lawyer's Services a. only lawyer referral service or ad payment valid. 4) Reciprocal Referral Arrangements a. lawyer may enter into referral agreements with lawyers and nonlawyers, but the referral agreement must be disclosed to client when making referral. 5) Types of Information that May be Disseminated Publicly a. name, firm name, address, phone number, svcs offered, basis of fees, foreign language ability, and references. 6) Additional California Restrictions a. CA att'y prohibited from making ads that: 1) guarantee an outcome

III. A)

B)

2) words or symbols that suggest quick cash or settlement 3) impersonate lawyer or client w/o disclosing that it is a dramatization 4) a staged accident or event w/o disclosing that it is a dramatization 5) contingent fee offer w/ provision client must still pay costs if lose case w/o disclosing arrangement. b. the following are presumed to be false or misleading: 1) communications delivered to a client who is hospital or suffering from physical or mental stress. 2) mailings that seek work and are not labeled as advertising 3) communications containing testimonials w/o disclaimer that results are not a guarantee of similar results. C) SOLICITATION a. a lawyer may not seek work by phone call or in person contact, or web chat, email unless is a personal, family, or professional connection. 1) Use of Agents to Solicit a. cannot use agents to solicit in a manner the lawyer himself can't. 2) Offers of Free Legal Services a. solicitation rules do not apply to svcs offered for free. 3) Personal Contacts with Family, Clients, former Clients, and Other Lawyers a. lawyer may solicit business from family, clients, former clients, and other att'ys 4) Targeted Direct-Mail Solicitations a. lawyer may send letters to persons who have known legal problems. b. must label as "advertising materials" 5) Harassing Prospective Clients Prohibited a. lawyer can't contact those who have indicated they don't want to be.

D)

COMMUNICATIONS OF FIELDS OF PRACTICE 1) Fields of Practice a. lawyer may tell public his areas of practice 2) Patent and Admiralty Lawyers a. requires special license, but may advertise specialty. 3) Certified Specialists a. CA recognizes specialization in family law, appellate practice, criminal law, bankruptcy, estate planning, immigration, taxation and workers' compensation. b. ads must state who organization that certified. IV. A) B) ENTERING INTO THE LAWYER-CLIENT RELATIONSHIP BASIC RESPONSIBILITY TO RENDER PUBLIC INTEREST LEGAL SVC 1) lawyer should aspire to render 50 hours of pro bono work per year. ACCEPTING APPOINTMENTS 1) lawyer should not seek to avoid appointment by court to represent persons except for good cause.

C)

CLIENT W/ DIMINISHED CAPACITY 1) must maintain normal attorney-client relationship insofar as possible. 2) may seek appointment of guardian if client does not seem to be able to protect self from harm. CA though cannot seek appointment of guardian if against client's wishes. EMERGENCY LEGAL ASSIST. TO NONCLIENT W/ DIMINISHED CAPACITY 1) when health, safety, or financial interest of person with 'seriously' diminished capacity is threatened with 'imminent and irreparable harm', lawyer may take legal action on behalf of the impaired if the impaired or someone acting on their behalf consulted lawyer.

D)

E)

AVOIDING CONFLICTS OF INTEREST a. lawyer must avoid conflicts of interest 1) Concurrent Conflicts of Interest a. lawyer cannot represent client if representation creates a concurrent conflict. A concurrent conflict exist when: 1) representation of client will be directly adverse to interests of another client. 2) significant risk that the representation will be materially limited by the lawyer's personal interests or interests of another client, former client, or third person. 2) Client Consent to Concurrent Conflicts a. a CA lawyer may under take client with conflict if: 1) if lawyer can competently represent potential and clients, and 2) representation is not prohibited by law, 3) if claim by one client is not against another and in same case, and 4) attorney must give 'written disclosure' to client when conflict arises out of the laywer's prior relationships or personal interests. b. if a reasonable lawyer looking at the facts would have to advise an affected client not to consent to the conflict, then the conflict is unconsentable. c. if lawyer's duty of confidentiality to one client prevents him from disclosing information that another cleint needs to understand conflict, conflict is unconsentable. 3) General Rule of Imputed Conflicts a. CA Rule - lawyers w/ conflicts may be screened from participation so long as they do not have confidential info. If a lawyer has confidential info the whole firm is disqualified. b. affected client may consent but must be given 'written disclosure' to client when conflict arises out of the laywer's prior relationships or personal interests. - must be timely screened from any participation - screen lawyer not allowed a fee from case - written notice of conflict given to any affected former client. 4) Specific Kinds of Conflicts a. Ownership or Financial Interest Adverse to Client 1) fair and reasonable to client

2) fully disclosed 3) chance to seek advice of independent counsel 4) and informed consent in writing b. CA Beneficiary Rule - lawyer is prohibited from 'inducing' client to name him as beneficiary, but may prepare instrument doing so. (not prohibited if related). c. CA literary or media rights rule - agreements to give literary or media rights are valid in CA, but create a serious conflict of interest. Client must waive conflict for agreement to be valid. d. CA financial assistance rule - lawyer is prohibited in all contexts from 'buying' a client w/ promise to pay client's personal or business debts, however a may make a loan to a client for ANY purpose AFTER the lawyer is hired as the client makes a written promise to repay the loan. e. CA 3rd party payment of svcs rule - if someone other than client is paying for svcs on behalf of client, the agreement must be in writing, and does not with representation of client, and info relating to the representation f. multiple client settlement/plea - att'y may not negotiate a settlement or plea on behalf of multiple clients unless all the affected clients have consented in a writing and it must explain the nature of all claims and the who all is participating in the agreement. g. in CA - a lawyer may not limit liability for malpractice. When settling a claim for malpractice, lawyer must advise client to seek independent legal

lawyer so long interfere is protected. signed

counsel. h. in CA - when lawyers are closely related by blood, att'y is client of the other att'y, the att'ys live together, or when the att'ys have an intimate personal relationship, the conflict must be disclosed to the clients and clients must consent to continue despite conflict. i. in CA - att'y can only retain part of client's proprietary interest in case as a contingent fee in a civil case. liens not allowed. j. - in CA - a lawyer is prohibited from 1) demanding sex from client as a condition of representation, 2) entering into a sexual relationship w/ client by coercion or undue influence, and 3) representing a imcompetently because of sexual relationship w/ client. k. in CA - liability ins. policies - ins. co. and client and joint clients. Lawyer has duty to represent both clients ethically. Governed by RPC. 5) Conflicts of Interest Regarding Former Clients a. a lawyer who represented a client in a former matter may not represent thereafter represent another client in the same or substantially related matter who's interests are materially adverse, unless the former client gives informed written consent. 6) Conflicts Stemming from Prospective Clients a. CA defines client as - one who consults w/ a laywer, regardless of whether an attorney-client relationship results. 7) Conflicts Stemming from Initial Consultation 8) Trial Counsel as Witness

a. CA rule - trial counsel prohibited from testifying before a jury. unless uncontested matter, the nature and value of his svcs, or client consents. 9) Conflicts in Representing an Organization a. CA rule - lawyer has duty to present relevant info to highest authority in organization, as necessary, and lawyer is prohibited from diclosing confidential info to an outsider unless necessary to prevent a criminal act that will cause death or substantial bodily harm. (lawyer has option to withdraw) b. lawyer must explain that he represents the organization, not individuals in it. c. under Sarbanes-Oxley - lawyer must report violations to the chief legal officer of organization. CLO must then investigate and take appropriate action to remedy, if lawyer believes appropriate action not take lawyer must report incident to board of directors, if still not remedied lawyer may report violation to SEC. This conflicts with CA's strict confidentiality rules. If fired for reporting, lawyer may file claim for wrongful termination. 10) Conflicts When a Lawyer Leaves a Firm a. firm may represent client who had former conflict, unless is the same matter, or a lawyer still w/ firm has material confidential info. Affected client may waive conflict. 11) Special Conflicts Rules for Former & Current Gov't Officers and Employees a. CA rule - an att'y who participated in prosecution may not switch to defense. b. screening still permissible. F) ESTABLISHING COMPENSATION FOR LEGAL SERVICES 1) Duty to Avoid Fee Misunderstandings a. in CA, any fee agreement above $1,000 must be in writing, unless client is a corp., client states in writing he doesn't want a written fee agreement, svcs are the same kind as client previously had w/ attorney, lawyer acted in emergency action for client, or writing is otherwise impractical. 2) Fee Must be Reasonable a. CA says fees must not be unconscionable. 3) Contingent Fees a. must be in writing and state the method fees are determined b. generally contingent fees are not allowed in domestic relations and criminal cases, however CA RPC is silent on the matter. c. lawyer who is fired before receiving contingent fee is entitled to reasonable fee if case if client later wins case. 4) Referral Fees a. in CA - referral fees allow from one lawyer to another so long as client knows of the arrangement and consents in writing, and the fee is not unconscionable and legal fees to client do not increase as a result. G) DISCLOSURE OF PROFESSIONAL LIABILITY INSURANCE a. lawyer not required to have PL insurance, but in CA must disclose if he does not have it, in writing, to all clients at the time of acquiring client. a. rule does not apply to gov't lawyers, in-house counsel, emergency svcs, or where client previously advised.

V. A)

THE LAWYERS RESPONSIBILITIES TO THE CLIENT BASIC OBLIGATIONS OF COMPETENCE AND CARE a. in CA - att'y has obligation to supervise subordinate att'ys and employees. b. must act with reasonable diligence and promptness in representing client c. and must keep client reasonably ininformed of matter and comply w/ info requests

B)

DUTY TO PRESERVE CONFIDENTIALITY OF INFORMATION 1) Attorney-Client Privilege a. allows the client to refuse to testify and prevent his att'y from testifying in court in matters related to the represenation. b. covers communications made through agents as well c. documents given to att'y are not privileged, they are discoverable. d. in CA - attorney-client privilege end when client dies and estate is settled. e. Attorney-client privilege does not apply when 1) client seeks the att'ys svcs to aid anyone to commit a crime or fraud. 2) the communication is relevant to a breach of duties arising out of the relationship 3) litigation arises between persons who were formerly joint clients 4) att'y can provide info about the competency or intent of a client who has disposed of property by will or inter vivos transfer. 5) or att'y reasonably believes disclosure is necessary to prevent a criminal act likely to cause substantial bodily injury or death. 2) Duty of Confidentiality a. applies to protect all client information from disclosure regardless of however and whenever acquired, not just communications made during the representation. a. CA Rule - lawyer promises to maintain the confidences and secrets of his client Exceptions: 1) compelled by ct of law. 2) to collect att'ys fees. 3) to defend against a claim of malpractice or wrongdoing by att'y 4) or where att'y reasonably believes disclosure is necessary to prevent a criminal act likely to cause substantial bodily injury or death. C) DUTY TO PROTECT A CLIENT'S PROPERTY a. lawyer must hold client's property separate from his own and from other clients'. b. client funds must be kept in trust account c. must keep records of clients funds and personal property d. when a fee amount is disputed, att'y may keep the portion not in dispute and but must hold the disputed portion in trust, separately, until the matter is settled. e. in CA - a lawyer must preserve records of client funds for five years after distributed. DUTIES AND BOUNDS OF LAWYER'S REPRESENTATION

VI.

A) B)

DUTY AS ADVISER 1) lawyer must exercise independent professional judgment and advice. SCOPE OF REPRESENTATION a. client determines the scope of representation, and lawyer informs client of the limitation imposed by law and CA RPC. 1) Means and Objectives a. client decides objectives, within law. b. client decides in criminal cases what pleas to enter, jury v. nonjury trial, and whether to testify in his own defense. In civil cases, client decides terms settlement. Also, what expenses to incur. c. att'y determines motions, scope of discovery, witnesses, direct and cross, evidence to introduce. 2) Limiting the Scope of Representation a. lawyer may limit scope if disagrees with client's position, lacks time, or matter is outside area of expertise. Must get client's informed consent to limit 3) Assisting the Client in Criminal or Fraudulent Conduct a. a lawyer must not counsel or assist in conduct the lawyer knows is criminal. b. if client insists on illegal or unethical assistance, then lawyer MUST withdraw c. if client is using lawyer to further illegal purpose, lawyer MUST withdraw d. if client revealing the client's confidential info is the only way the lawyer can avoid assisting in a crime or fraud, he MUST reveal enough information to prevent, rectify, or mitigate the injury.

of

scope.

C) D)

TRANSACTIONS WITH THIRD PERSONS a. note represented by counsel rules.

THE CONDUCT OF LITIGATION a. a lawyer must not make frivolous claims or defenses. lawyer must make reasonable efforts to expedite litigation w/ interests of client. E) CANDOR TOWARD THE TRIBUNAL a. a lawyer may not knowingly: 1) make false statements of fact or law to court 2) fail to correct a false statement or material fact previously made 3) fail to disclose adverse legal authority which opposing counsel fails to disclose 4) present false evidence 1) False Evidence a. must not offer evidence knows as false. b. lawyer cannot allow witness to testify to things lawyer knows are false. c. In CA - if witness insists in testifying about matters the att'y knows are false, the att'y must first try to persuade the client to tell the truth, if that fails att'y may request permission from ct. to withdraw, if that fails att'y may put client on stand and question to the point he knows where client will lie,

from there the att'y may allow the client to speak in 'narrative' form, but att'y may not use the false statements in closing testimony d. CA Rule - silent on remedial measures. lawyer is prohibited from misleading the judge or jury w/ false statements and may use only means that are consistent w/ truth. 2) Required Disclosures in Ex Parte Proceeding a. in an ex parte proceeding, duty to present all material facts to make informed decision. b. CA RPC rules permit lawyer to communicate ex parte w/ judge w/o duty to report to other party. F) FAIRNESS TO OPPOSING PARTY AND COUNSEL - Lawyer must not: 1) unlawfully obstruct party's access to evidence, conceal, alter, or destroy evidence. 2) falsify evidence 3) knowingly disobey an obligation 4) make frivolous discovery requests 5) present or allude to matters that will not be supported by evidence 6) request someone other than client to refrain from giving information to another party AVOIDING IMPROPER CONDUCT WITH JURORS AND THE COURT

G) I)

TRIAL PUBLICITY a. a lawyer may not make statements the lawyer knows will prejudice the proceedings. b. permissible statements - the claim, offense, or defense, items in public record, that investigation is in progress, when ct matters will be heard, identity of parties involved, request in obtaining evidence, information necessary to aid in apprehension of suspect, a warning of danger that a person is likely to cause harm to an individual or the public, the fact, time or place of accused's arrest, identity of investigating and arresting officers, statements necessary to protect from prejudicial public statements initiated by other party or person. c. impermissible statements - identity of witnesses, expected testimony of party or witness, statements of character, credibility, criminal record, or reputation of suspect or witness, nature of physical evidence to be presented, results of an examination or test or refusal to submit thereto, info the lawyer knows is inadmissible or prejudicial, fact that D is charged w/o stating that he is presumed innocent, possibility of guilty plea, existence of a confession, or refusal to make statement, an opinion of guilt or innocense. VII. A) B) TERMINATION OF THE LAWYER-CLIENT RELATIONSHIP IN GENERAL MANDATORY WITHDRAWL 1) California Rule

a. att'y withdrawal mandatory if the lawyer knows or should know that the client is acting to harass or injure another person. b. or the representation will result in violation of the RPC C) PERMISSIVE WITHDRAWL 1) CA Rule a. client wants att'y to represent in furtherance of crime b. client fails to substantially fulfill obligations to the lawery regarding svcs and has been given reasonable warning that lawyer will withdraw unless obligation fullfilled. c. representation will result in unreasonable financial burden on lawyer. D) VIII. A) D) WHEN LAWYER MUST CONTINUE REPRESENTATION 1) when ordered by court. THE LAWYER'S RESPONSIBILITIES TO THE LEGAL PROFESSION LAWYER'S CONDUCT WHILE NOT IN PRACTICE 1) lawyer still bound by ethics standards when not in practice of law. SPECIAL ROLE OF THE PUBLIC PROSECUTOR - prosecutor must 1) refrain from prosecuting a charge he knows is not supported by probable cause 2) assure that the accused has been advised of his rights to counsel 3) not seek a waiver of rights from an unrepresented accused 4) make timely disclosure to defense of all evidence known to prosecutor that tends to negate the guilt of the accused or mitigate the offense. 5) exercise reasonable care not make himself and to prevent investigators or other persons assisting in the prosecution from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused. 6) must not subpeona a lawyer to present evidence unless believes not privileged, is essential, and no feasible alternative. 7) promptly disclose new, credible, and material evidence 8) seek to remedy a conviction the prosecutor knows by clear and convincing evidenced that the accused did not commit. REPORTING PROFESSIONAL MISCONDUCT 1) California Reporting Requirements a. no duty to report misconduct by other lawyer or judge. b. a lawyer is required to report themselves when: 1) sued for malpractice 3 times in 12 months 2) found civilly liable for fraud, or breach of fiduciary duty 3) sanctioned more than $1,000 (except discovery sanctions) 4) charged w/ a felony 5) convicted of certain serious crimes 6) disciplined in another jd.

E)