Text File

The file "GOODATTY" is an outline of general principles of basic legal ethics as tested by the California Bar Examination. In short, it's what the California Bar expects aspiring attorneys to know about Professional Responsibility, and it can help the layperson gauge just how ethically his or her current attorney is acting in connection with a given representation.

Some explanations of abbreviations:

"MC" "EC" and "DR" stand for the Model Code, Ethics Code and Disciplin- ary rules, as embodied in the ABA's Canons of Professional Ethics. These were the ethical guideposts to be utilized by attorneys from 1908 to 1969, and are mostly of historical interest now. "MR" stands for the American Bar Association Model Rules of Professional Conduct, now adopted by a majority of States. "CA" refers to those ethical rules for attorneys in California, insofar as they differ from "MR', above. Although the precise code sections are not cited, these rules are embodied in the California Business and Professions Code and in the California Rules of Professional Conduct.

"JX" = "jurisdiction." "COA" = "cause of action." "EG" = "for example" "GR" = "general rule" "EXC" = "Exception" "K" = "Contract" - 2 - GOODATTY.TXT Professional Responsibility _________________________________________________________________ ___

I. THE BASICS: Becoming & Losing the right to be a lawyer A. Becoming a lawyer: admission to practice 1. Moral fitness: TEST: Law concerning professional responsibility "must have a rational connection with the applicant's fitness/capacity to practice law." 2. Information on fitness: How does a particular committee find out whether a person is "morally fit to practice law"? Two sources: a. From att'y's bar application 1) It's an ethical violation for an applicant to lie/fail to reveal information on the application...att'y can be disciplined after he BECOMES an att'y & discrepancies turn up b. From letters of recommendation submitted on applicant's behalf 1) Bar usually requires that at least SOME recommendation letters come from attorneys, based on GOOD FAITH BELIEF in candidate's fitness 2) GR: It's ethical violation for att'y to knowingly fail to disclose information about the applicant a) EXC: Duty of confidentiality: lawyer may be under ethical obligation NOT to reveal certain private client information b) EXC: (CA): It's NOT a violation for a lawyer to serve as counsel of record for an applicant to practice law in proceedings related to the admission. 3. Qualifications to practice law in CA a. A non-attorney applicant for admission to practice law in CA must: 1) be at least 18 2) be of good moral character 3) meet appropriate educational requirements 4) pass the Bar b. An out-of state attorney, to practice in CA, must: 1) be at least 18 2) be of good moral character 3) have been admitted to practice in another sate & have practiced law at least 4 of the past 6 years 4) pass an ATTORNEYS' Bar Exam (no Multistate) B. Disciplining a lawyer: When can a lawyer be disciplined? For "MISCONDUCT"! 1. "Misconduct" defined: a. "Crimes involving dishonesty/moral turpitude" b. "Torts of fraud/deceit" 1) What about acts of dishonesty on part of att'y that don't rise to level of full-fledged tort? Can att'y be disciplined for those? YES: Both Rules & Code say that a lawyer may be punished for ANY act of dishonesty, fraud, deceit or misrepresentation c. "Violations of Rules of PR": If att'y violates one of the explicit rules of Rules of Code, OR OF CA LAW, he can be punished d. Advocating the overthrow of the State/Federal Government by force, violence, or other unconstitutional means (CA) e. Requiring as a condition of settlement in a CIVIL cause of action for misconduct that the plaintiff agree not to file a complaint with the disciplinary authority for that misconduct (CA) 2. Acts by lawyer OUTSIDE the state are also covered by his state's PR rules! a. But the CA attorney has a defense if his activities in question were SPECIFICALLY REQUIRED BY THE RULES OF THE JURISDICTION where the alleged misconduct occurred b. An out-of-state attorney doing PRO HAC VICE here is STILL subject to CA rules of professional responsibility, even if not LICENSED here

II. THE LAWYER'S RELATIONSHIP WITH THE CLIENT A. GETTING the client: How does a lawyer go about getting clients? [MR 7.1-7.5; DR 2-101-105] 1. Advertising: Just about everything in MC is now declared UNCONSTITUTIONAL as unfair restraint of trade (Bates) a. GR: "While a lawyer may advertise, a lawyer shall NOT make a false/misleading communication about himself or about his services." [MR 7.1] 1) Apart from this limitation, an att'y is free to say just about anything he wants about his practice b. Application: What's allowable under this rule & what isn't? 1) NOT allowed: a) Communications likely to create an UNJUSTIFIED EXPECTATION about the results the lawyer can achieve. Such bragging = improper advertisements (1) EG: Ad stating that lawyer has won "2/3 of all my cases" is NO GOOD, since it would give impression that a client would always have a 2/3 chance of winning with that lawyer (2) EG: Att'y uses client to tape ad saying, "att'y A got me a $5 million judgement". NO GOOD! This creates an unjustified expectation in the listeners that att'y can do same for them (a) CA EXC: If in ad att'y places DISCLAIMER warning that "your actual results may vary", then the att'y probably CAN have client testimonial ads (but this is on the edge of ethics) b) Communications which COMPARE THE LAWYER'S SERVICES WITH THOSE OF ANOTHER are not allowed UNLESS THE COMPARISON CAN BE FACTUALLY SUBSTANTIATED (1) EG: D advertises that "I've won more drunk driving cases than any other att'y in the city." Att'y can only say this if it's TRUE c) CA: Any communication concerning the availability for professional employment of a lawyer or a law firm made by or on behalf of a lawyer SHALL NOT: (1) Fail to clearly indicate that the communication is an ADVERTISEMENT or SOLICITATION (2) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct. d) CA: These examples of communications also violate PR rules: (1) Communications which contain guarantees, warranties or predictions regarding the result of the representation (2) Communications which contain testimonials about a lawyer UNLESS the communication also contains a disclaimer such as "this testimonial or endorsement does not constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter." (3) A communication directed to a potential client which the lawyer knows or should know is unable to exercise reasonable judgement (4) A communication transmitted at the scene of an accident or en route to a hospital or other health care facility 2) ALLOWED: a) Law firm can refer to itself as a "Legal clinic" UNLESS IT WOULD BE SUBSTANTIALLY MISLEADING (1) EG: Law firm unassociated with major university & located down street from university advertises itself as "The University Legal Clinic". THIS IS NO GOOD because of the proximity of firm to campus: clients may wrongly associate the two when there IS no such association b) Att'y can refer to himself as "specialist" in certain area of law ONLY IF HE'S BEEN SO DESIGNATED AS ONE BY THE LAWS OF THAT JX (1) Att'y can then only advertise in THAT JX that he's a specialist (2) But can att'y describe his practice as being "LIMITED to" a certain area of law (eg, family law)? SPLIT!! (a) MC: Yes (b) MR: NO! c) Att'y's A & B can advertise their firm under both their names in a JX where only one of them has been admitted to practice ONLY IF THEY INDICATE SOMEHOW THAT ONE OF THEM IS NOT ADMITTED TO PRACTICE IN THAT JX 2. Solicitation: "Solicitation" = "ANY IN PERSON OR LIVE TELEPHONE CONTACT WITH A PROSPECTIVE CLIENT" & is generally NOT permitted CA: "Solicitation" = "Any communication, by any means, made to a person known to be represented by counsel in a matter to which the communicatio relates." a. Targeted contact by att'y to small, select group: Pecuniary gain to lawyer? 1) Ohralik: Classic, face-to-face "ambulance chasing" NOT permissible! 100% BANNED! a) EXC: Att'y CAN directly "solicit" FAMILY MEMBERS and FORMER CLIENTS 2) Target MAILINGS/RADIO/TV ADS: a) Att'y has PECUNIARY INTEREST AS PRIME MOTIVATING FACTOR: (1) Written material must have "ADVERTISEMENT" appear on outside of envelope (2) Radio messages/TV ads must have "ADVERTISEMENT" appear at beginning & end of ad (3) CA requires that "ADVERTISEMENT" appear in mailings to FORMER OR PRESENT CLIENTS as well b) Att'y has NO pecuniary interest: (In Re Primus) But a lawyer CAN target-market a mailing campaign to people known to need help IF THE ATT'Y GETS NO PECUNIARY GAIN FROM IT (ACLU) b. ANY form of communication w/prospective client NO GOOD if: 1) prospective client has made known a desire NOT to be solicited, or 2) the solicitation includes coercion, duress or harassment c. CA: Written or recorded communications to prospective clients known to need legal services d. Targeted contact by 3rd parties: It makes no difference if a 3rd party (runner/capper) does the soliciting FOR the lawyer; IF THE 3RD PARTY DIRECTLY SOLICITS CLIENTS FOR THE ATT'Y AT THE ATT'Y'S DIRECTION, AND THE MOTIVE IS FOR PECUNIARY GAIN, THEN ILLEGAL SOLICITATION HAS OCCURRED! 1) Makes no difference that the 3rd party does referral for free or thinks that he's doing society a favor by referring the world to this att'y; if the att'y DIRECTS the 3rd party to do it & att'y going to get $ as an end result, then SOLICITATION has occurred a) CA: A K for legal services secured by any lawyer through the use of an agent is VOID (1) CA EXC: Public defenders/assigned counsel may make known their services to persons UNABLE to afford legal counsel 2) BUT if the 3rd party refers clients to att'y & ISN'T acting at direction of att'y, then NO solicitation! 3) GROUP LEGAL PLANS: Attorney CAN be a part of a group legal plan, so long as: a) Attorney has no OWNERSHIP INTEREST in it b) Attorney himself does no advertising B. KEEPING the client (ESSAY EMPHASIS HERE): Once you HAVE a client, how do you KEEP him by representing him? 1. Competence: Att'y must provide client with "adequate representation", ie, Att'y must possess "the requisite knowledge/experience to deal with client's problem." [MR 1.1-1.4; DR 6-101] a. If att'y NOT initially competent to represent client, he has 3 choices ONLY: 1) DECLINE to represent client or WITHDRAW from case 2) MAKE himself competent (w/o causing UNREASONABLE expense or delay to client); Learn what you have to learn to deal with client's problem 3) ASSOCIATE competent counsel (with client's approval - recommended by MR & MC) a) CLIENT CONSENT CANNOT SHIELD AN INCOMPETENT ATTORNEY! b) EXC: EMERGENCY EXCEPTION: Client contacts you at last minute before trial & needs an att'y, fast. Client tells you his story & you realize you're clueless in this area. But hearing is in 5 min...no time to take the above 3 options. IN EMERGENCY SITUATION, INCOMPETENT ATTORNEY CAN CONTINUE TO REPRESENT CLIENT, BUT ONLY FOR SO LONG AS THE EMERGENCY LASTS. b. What happens when competent att'y does INCOMPETENT thing? (Malpractice) 1) In CIVIL cases: Att'y is liable for malpractice & may NOT contractually limit his liability unless permitted by law & client is represented by independent counsel when making the agreement [MR 1.8(h)] a) CA: You may not limit your liability for malpractice, PERIOD. 2) In CRIMINAL cases: Att'y's malpractice = gnds for reversal if it meets the test for "INEFFECTIVE ASSISTANCE OF COUNSEL TEST" under the 6th Am. CRIM LAW/PRO CROSSOVER AREA! a) BUT FOR COUNSEL's INCOMPETENCE b) There's a REASONABLE PROBABILITY that a different outcome would have been reached. 2. Att'y fees & Client funds: Rules fairly simple here, but att'ys screw up most in real life here a. Att'y Fees: [MR 1.5; DR 2-106 suggest that any fee agreement should be in writing] 1) Any fee an att'y charges a client must be REASONABLE; excessive fees are PROHIBITED a) TEST for "unreasonable fees": fee is NOT unreasonable if: (1) fee not clearly excessive... (2) ...to an ordinary prudent att'y in that area b) Factors to base fee on: [MR 1.5(a); DR 2-106(b)] (1) Time/labor req'd to prepare case, novelty/difficulty of case; skill required to do case right (2) Likelihood, if apparent to client, that acceptance of the employment will preclude OTHER employment by att'y (3) Fee normally charged for that kind of case in that area (4) Amount of $ involved in case & results obtained (5) Time limitations imposed on att'y by client (6) Nature/length of att'y's professional relationship with client (7) Experience, reputation & ability of lawyer performing the services (8) Whether fee is fixed/contingent (9) CA: The amount of the fee in proportion to the services performed (10) CA: The relative sophistication of the lawyer/client (11) CA: the informed consent of the client to the fee agreement 2) Fee splitting with other (associated) att'ys OUTSIDE office is PROHIBITED, UNLESS: a) Original fee was reasonable [MR 1.5(e) only] b) The split was made in proportion to services rendered; [MC] c) Fees were split with client's consent, or as att'ys agree to assume joint responsibility for THE ENTIRE FINISHED PRODUCT [MR 1.5(e) 1) CA: Allows fee splitting IN WRITING, but does NOT require the splitting attorneys to assume joint responsibility 2) NOTE: you MUST get client's written consent to PAY the associated att'y, but NOT to retain him in the first place! d) CA: The total fee charged by all lawyers is NOT INCREASED SOLELY BY REASON of the division & is not unconscionable 3) Contingency fees: When can att'y charge these? a) Contingency fees PROHIBITED in: (1) criminal cases (2) marital proceedings (danger of att'y's judgement getting clouded) (3) CA: Unlike the MC & MR, CA says contingency fees OK in these situations!!! b) Apart from those, it's generally OK to enter into contingency fee arrangement (1) But NOTE: where a reasonable hourly fee can be determined & the client can pay it, both MR & MC recommend that att'y NOT enter into contingency fee arrangement c) CA: In lawsuits against HEALTH CARE PROVIDERS, there's a STATUTORY CAP on the maximum recoveries that can be had through contingency fee agreements: (1) 40% of the first $50,000 received (2) 33% of the 2nd $50,000 received (3) 25% of the next $500,000 received (4) 15% of anything above that d) Writing req'd for contingency fee agreement? (1) Both MR & MC RECOMMEND, but don't require (2) CA: A lawyer MUST reduce a K for services to a writing if it is reasonable to foresee that the TOTAL expense to the client will EXCEED $1000, unless the case is handled on a contingency fee basis. (a) The K is to contain: 1/ Hourly rate & other applicable fees & charges 2/ General nature of legal services to be provided 3/ Responsibilities of lawyer/client regarding performance of the K (b) Writing requirements N/A if: 1/ Services were rendered in an EMERGENCY 2/ Fee can be implied from previous services of the same general kind provided by the lawyer 3/ Client, after full disclosure, states that the writing is NOT required 4/ Client is a CORPORATION b. Client funds [MR 1.15; DR 9-102] 1) GR: ESTABLISH & USE A TRUST FUND! a) Any time you come into possession of client funds/property (via prepayment, settlement, etc.), you MUST place them in a separate trust account (1) While you CAN commingle different CLIENTS' funds, you CAN'T commingle your $ with theirs. b) Record-keeping responsibility (for ANY client property): (1) Give PROMPT NOTICE of receipt of the funds/property, IDENTIFY them & KEEP THEM IN SAFE PLACE (2) Maintain complete records & give appropriate accountings to client about them (3) Promptly deliver the funds/property upon request 2) Misappropriation: PROBABLY THE WORST VIOLATION AN ATT'Y CAN COMMIT IS TO MISAPPROPRIATE CLIENT FUNDS...COUNT ON AUTOMATIC DISBARMENT a) EX: You're working late in office & are told your spouse needs emergency surgery right away. Hospital demands $ up front. You take client $ from firm safe & use it to pay for operation. Next morning you promptly return the $ from your account to the safe, even pay 100% interest for overnight use. YOU'RE STILL SUBJECT TO DISCIPLINE, EVEN IF NO ONE HURT & NO MATTER WHAT YOUR REASONS WERE!! b) CA: Where funds in a trust account belong partially to the client & partially to the attorney/firm, CA requires that the portion belonging to the attorney/firm be WITHDRAWN ASAP after the attorney's interest becomes fixed! 3) Commingling: Most fertile testing area as to client funds a) ALL funds belonging in whole or in part to a client MUST be deposited in a separate interest- bearing trust account. b) Although att'y can withdraw funds as needed & fees as earned (with appropriate notice to client), if there's a dispute, the disputed portion MUST remain in a separate client account pending resolution of the controversy (1) EG: Att'y agreement with client is that att'y is to get 25% of any pretrial winnings or 33% of any POST trial proceedings. During jury deliberations at trial, other side gets nervous & offers $300,000 settlement offer. Your client accepts. Jury never gets to return verdict. You claim that you're entitled to $100,000 (33%), since it went to trial & may have been awarded by jury had they been allowed to deliberate. But client says that you're only entitled to $75,000 (25%) because the trial never technically finished. At this point, you MUST tender $200,000 to client (he'd definitely be entitled to at least that much), and you can KEEP $75,000 (since you'd definitely be entitled to at least THAT much). The disputed $25,000 must remain in the client's trust account fund pending resolution of the controversy c) Client funds should be deposited into one or more INTEREST-BEARING ACCOUNTS. If you're going to hold onto client funds pending resolution of a controversy surrounding them, client is at least entitled to interest while the dispute is going on (1) CA: Requires that the attorney maintain an INTEREST-BEARING DEMAND TRUST ACCOUNT for deposit of all client deposits which are NOMINAL or on deposit for a SHORT PERIOD OF TIME....interest produced will go to State Bar to pay for pro bono civil services d) Retainers & Advance fees: Watch the language here! (1) True retainer = NONREFUNDABLE COMPENSATION TO ATT'Y FOR AGREEING TO TAKE CASE (a) So if att'y gets $5000 retainer & then does $1000 worth of work for client, att'y gets to KEEP the $5000 PLUS bill the client for the additional $1000 (2) But if client pays att'y "$5000 retainer as advancement against fees earned," this is NOT true retainer! It's more like an advancement against fees earned. So if att'y does $1000 of work for client, att'y can keep $1000, but must RETURN the remaining $4000 (3) WHEN IN DOUBT AS TO HOW TO CLASSIFY, CLASSIFY AS AN ADVANCEMENT OF FEES 3. Conflict of interest [MR 1.7-1.12; 2.2 & 3.7; DR's 5-101- 107] HEAVILY TESTED!! CRUX of essay emphasis!! a. If there IS a conflict of interest, what must/should the att'y do? 1) Rule: WITHDRAW from representation of one/both clients (from both if confidential information was rec'd from one of them) unless client CONSENTS AFTER CONSULTATION 2) Caveat: "If a disinterested lawyer would conclude that the conflict of interest situation is so great that the client should not consent to representation under the circumstances, the lawyer with the conflict MUSTN'T even seek the client's consent." ONLY OPTION IS TO WITHDRAW. b. Look for conflicts of interest between the client and... 1) ...the Lawyer [MR 1.7(b)] a) IN GENERAL: When lawyer's & client's interests are adverse to each other (1) EG: Att'y is firm believer in Sierra Club, but client is from Pwr Company, seeking to dam up river & muck up environment. Lawyer's interests are NOT at odds with client's interests if: (a) LAWYER REASONABLY BELIEVES THAT THE REPRESENTATION WON'T BE ADVERSELY AFFECTED (b) CLIENT CONSENTS TO REPRESENTATION AFTER DISCLOSURE OF ATT'Y'S INTERESTS [DR 5-101(a)] b) Financial dealings between lawyer & client: Whenever the lawyer wants to engage in financial dealings with the client (EG, sell painting from lobby to client), it's NOT a conflict if 4 conditions are met: [MR 1.8(a); EC 5-3; DR 5- 104(a)] (1) Transaction is OBJECTIVELY FAIR & REASONABLE TO CLIENT (2) Client must be INFORMED (MR: in writing) of the terms of the agreement in a manner he can understand (3) Client should have adequate opportunity to seek independent representation by other counsel (att'y should suggest it) (a) CA: REQUIRES that the advice to seek independent counsel be IN WRITING (4) Client consents (MR: in writing) c) Other areas: (1) Standard commercial transactions: If the subject matter of the transaction involves a good/service which the client normally supplies to the public at large, then it DOESN'T have to meet the above 4 tests to be a legitimate financial dealing between att'y & client...client should know his business & should be able to hold his own there (2) Book & media rights: IT'S IMPROPER FOR A CLIENT TO TRANSFER TO THE ATT'Y THE MEDIA RIGHTS TO CLIENT'S LIFE STORY UNTIL THE CASE & ALL POSSIBLE APPEALS ARE OVER [MR 1.8(d); DR 5- 104(b)] (3) Lawyer providing financial assistance to client: (a) Generally, this = a "financial dealing" & must meet the four above prongs [MR & MC] 1/ CA says that a lawyer MAY lend money to a FORMER client, after the lawyer's employment by the client has ended 2/ CA: If attorney seeks to lend money to PRESENT client, then this can only be done: a/With client's consent b/ Payment must be made through a third person from funds collected on the client's behalf as a result of the representation (b) EXC: When the lawyer wants to advance LITIGATION COSTS to client, it doesn't have to meet the above 4 prongs 1/ But there's a dremain ULTIMATELY LIABLE to att'y for repayment of these litigation costs (4) Lawyer as witness: When is it a conflict of interest for att'y to take a case when he knows he may be called as a witness in that case? (a) GR: A lawyer must NOT act as advocate at a trial in which the lawyer is likely to be a "NECESSARY WITNESS" 1/ "Necessary witnesses" are those witnesses who are the only ones who can testify to a piece of MATERIAL evidence (b) EXCEPT WHERE: 1/ The testimony relates to an UNCONTESTED ISSUE 2/ The testimony relates to the nature/value of legal services rendered in the case, or 3/ Disqualification of the lawyer would work a SUBSTANTIAL HARDSHIP on the client (NOT IN CA) (c) CA allows a lawyer to testify in a matter involved in the representation where 1/ The proceedings are non-adversarial, OR 2/ the lawyer is testifying before a judge 2) ...Other clients: [MR 1.7(a)&(b)] a) Conflict between this client & another PRESENT client (1) Parties to SAME lawsuit (a) Opponents: You can't represent both sides of fence, obviously! (b) Co-parties 1/ Criminal cases: Neither MR nor MC expressly prohibit representation of criminal co-D's, but they STRONGLY advise against it! 2/ Civil cases: Neither MR nor MC expressly prohibit representation of civil co-P's or D's, but they advise against it (2) Parties to DIFFERENT lawsuits: you represent client A in lawsuit #1. In walks client B who wants to sue A in unrelated lawsuit #2. Can you represent B? (a) GR: MR & MC don't prohibit it, but they both advise against it...potential for conflict is great (b) EXC: When your client is a LARGE organization that has a lot of different divisions 1/ EG: You represent publishing division of client A against (C) infringement suits. Client B wants to sue A for a slip & fall at one of A's amusement parks. You can represent B here IF: a/ You as att'y don't think it'll affect your representation of A's publishing interests, AND b/ BOTH clients consent after disclosure /1/ Caveat: "If a disinterested lawyer would conclude that the conflict of interest situation is so great that the client should not consent to representation under the circumstances, the lawyer with the conflict MUSTN'T even seek the client's consent." ONLY OPTION IS TO WITHDRAW. b) Conflict between this client & FORMER clients: Can you represent present client against former client? YES, UNLESS... (1) You received actual confidences from prior client which relate to the present litigation & which could be used against prior client, OR.... (a) EXC: unless those actual confidences were already REVEALED, are READILY DISCOVERABLE, or are otherwise GENERALLY KNOWN (2) ...issues in the two representations are SUBSTANTIALLY RELATED (unless former client consents - in writing - after consultation) (a) Caveat: "If a disinterested lawyer would conclude that the conflict of interest situation is so great that the client should not consent to representation under the circumstances, the lawyer with the conflict MUSTN'T even seek the client's consent." ONLY OPTION IS TO WITHDRAW. c) Special situation re: Gov't as former client: (NARROWER EXCEPTION THAN ABOVE) (1) GR: You can't later represent a private party against your old gov't client as to a matter in which you participated personally and SUBSTANTIALLY while with the gov't unless the gov't consents (2) Definition of "matter": The common matter between your present client & the gov't client must be EXACTLY THE SAME in order to keep you from representing the newer client AND YOU MUST HAVE WORKED DIRECTLY WITH THAT MATTER while you represented the gov't (a) And if Gov't consents, you can STILL represent later client as against gov't...even in same matter involved AND you worked directly on it 3) ...3rd parties (This problem generally arises when lawyer's fees are paid by 3rd party, especially parent for child, Ins. Co. for insured, etc.) [MR 1.7(b)] a) OK if: (1) Client consents after consultation (a) CA: No disclosure is required if 1/ such nondisclosure is authorized by law 2/ the lawyer is rendering legal services on behalf of a public agency which provides legal services to the public (b) Caveat: "If a disinterested lawyer would conclude that the conflict of interest situation is so great that the client should not consent to representation under the circumstances, the lawyer with the conflict MUSTN'T even seek the client's consent." ONLY OPTION IS TO WITHDRAW. (2) There's no interference by 3rd party with lawyer's professional judgement, and (3) Confidentiality of information is preserved b) Special problems: (1) Legal aid: Is it OK for att'y to work under non- lawyers (ie, businessmen who make actual business decisions)? Yes, SO LONG AS att'y doesn't allow the businessmen to interfere with att'y's legal judgement in any way (2) Ins. Co's: You work for Ins. Co. & they tell you to help B out in his car crash case. You interview B & discover that during car crash B was drag racing. You know that Ins. Co.'s policy doesn't cover drag racing...in effect, that Ins. Co. is covering B when it doesn't have to. Do you tell Ins. Co.? NO! That info is CONFIDENTIAL between client & att'y & can't be disclosed. DON'T LOSE SIGHT OF WHO YOUR CLIENT IS! (3) Business deals: These are NON-LITIGATION CONFLICTS. BOTH MR & MC say you should guard against potential conflicts in this situation (a) EG: You've taken your car to Mechanic regularly for 15 years. In comes Client A, who wants to sue mechanic. Make sure your representation isn't affected by your relationship to Mechanic 4) NOTE re: Vicarious disqualification: a) GR: if ONE member of a firm is disqualified by conflict of interest, ALL OTHER members of firm are disqualified b) EXC: (MR) SCREENING: If an att'y who previously represented the GOV'T can be SCREENED from the representation so that he's totally removed from the representation, then some other member of the firm can represent the new client as against the gov't client (1) But this "screening" exception only applies when the Gov't was the old client 5) CA TREATMENT OF CONFLICTS: VERY confused!! a) Lawyer may engage in the following client conflicts IF THE CLIENTS GIVE THEIR INFORMED WRITTEN CONSENT: (1) Where a lawyer concurrently represents clients whose interest conflict...NO DISTINCTION MADE BETWEEN CIVIL/CRIM CASES (2) Where a lawyer has obtained CONFIDENTIAL INFORMATION from a client, or former client, that information is MATERIAL TO A PRESENT REPRESENTATION OF ANOTHER CLIENT, and the present representation of the second client is ADVERSE TO THE FIRST CLIENT or former client (3) Where a lawyer has or had a relationship with another party interested in the representation (4) Where a lawyer represents a client in a matter in which another party's lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer, or has an intimate personal relationship with the lawyer b) "Informed consent" here means: (1) FULL DISCLOSURE TO THE CLIENT of the circumstances (2) Advice to the client of any ACTUAL or REASONABLY FORESEEABLE ADVERSE EFFECTS of those circumstances upon the representation c) CA's ABSOLUTELY PROHIBITED CONFLICTS: Lawyer is guilty of MISDEMEANOR & is subject to disbarment if (1) the lawyer advises, aids, or promotes the defense of any action in which the prosecution is conducted by a lawyer with whom the lawyer is directly or indirectly connected as a partner, OR (2) the lawyer (or lawyer's partner) has been involved in the prosecution of an action and then becomes involved in handling the defense of the action. 4. Withdrawal a. MANDATORY withdrawal: Lawyer MUST withdraw if: 1) Continued representation of client would result in KNOWING violation of the Rules, Code or other law by att'y; 2) Lawyer's mental/physical ability is impaired such that it's UNREASONABLY DIFFICULT for the lawyer to continue the representation; 3) Lawyer is FIRED by client. Lawyer must then IMMEDIATELY withdraw. b. PERMISSIVE withdrawal: Lawyer MAY withdraw if: 1) client persists in course of action involving lawyer's services which lawyer REASONABLY believes is criminal/fraudulent; a) CA: Permissive withdrawal by attorney allowed where the client insists, in a matter not pending before a tribunal, that the lawyer engage in conduct that's CONTRARY to the judgment/advice of the lawyer 2) Client has used lawyer's services to perpetrate crime/fraud; 3) Client persists in pursuing course of action lawyer considers repugnant or imprudent; 4) continued representation will result in an unreasonable financial burden or has been made unreasonably burdensome by the client ["other conduct makes it unreasonably difficult to carry out employment effectively"; DR 2-110(C)(1)(d)]; a) ie, client won't return calls/cooperate in preparing case 5) "other good cause" for withdrawal exists 6) withdrawal can be accomplished without material adverse effect on interest of client [MR only, NOT MC] 7) CA: Where the lawyer's inability to work with co- counsel indicates that the best interests of the client will likely be served by withdrawal 8) CA: Where the lawyer's mental/physical condition renders it merely DIFFICULT, and not UNREASONABLY DIFFICULT, for the lawyer to carry on the representation effectively c. Withdrawal procedure: 1) Get permission from court ONCE CT HAS TAKEN JX OVER THE MATTER (ie, once you've filed your answer) 2) Protect client's legitimate interests: lawyer must take all reasonable precautions to help client & to protect client's interests. You just can't walk away & leave client hanging. 3) CA: A lawyer who has withdrawn must promptly release to the client, at the client's request, all the client's papers & property, whether the client has paid for the services or not (the lawyer may keep copies of those papers at the lawyer's own expense) C. REPRESENTING the client: What must a lawyer do to properly represent a client? 1. ZEALOUS representation [MR 3.1-3.5; DR 7-101 & 102]: Lawyer must do EVERYTHING LEGALLY & ETHICALLY NECESSARY to further client's interests, UNLESS ATT'Y HAS CLEAR EVIDENCE THAT CLIENT'S MOTIVE IS TO HARASS/MALICIOUSLY INJURE ANOTHER (absent that evidence atty is to assume client's motives are proper) a. Division of decision-making authority between client & att'y 1) Client typically has final say as to the OBJECTIVES/GOALS of the representation, INCLUDING DECIDING WHETHER TO SETTLE; att'y can't accept settlement without client's approval 2) Attorney has final say as to MEANS USED to reach those objectives/goals, UNLESS THE TECHNICAL/TACTICAL ISSUE INVOLVES: a) CLIENT EXPENSE: Att'y must abide by client's wishes b) 3RD PARTY WELFARE: Att'y must abide by client's wishes (EG, when client's witness is too weak to go on & client asks att'y not to direct exam that witness) (EG, "Inherit the Wind") b. Duties of Att'y in zealously representing client: 1) Avoiding frivolous claims: You can' assert any claim unless you're able to make GOOD FAITH ARGUMENT in support of it a) But MR says you CAN plead innocent for crim D even if you believe he's guilty as hell...not frivolous; MC is ambiguous 2) Candor to the court: You can't (knowingly) lie to the court...ethical violation! a) Nor can you make a statement of fact to the court when you're still UNSURE of its truth b) If you know of a case that is directly adverse to your client & that case comes from a controlling JX (ie, from appeals case in your JX), & other side FAILS to mention it, YOU MUST! (1) But you're generally under NO duty to reveal ADVERSE EVIDENCE (2) EXC: If the revealing if that adverse evidence is necessary to avoid assisting crim/fraudulent actions by client, then you MUST reveal it (eg, client perjury) (3) So if you discover that your client/client's witness has perjured herself on the stand, you have 3 options: (a) First, try to talk them out if perjury & into recanting that testimony (b) Second, attempt to withdraw, if that would solve the situation (c) Third, tell the judge PRIVATELY IN CHAMBERS...if that doesn't work, YOU MUST KEEP ON REPRESENTING CLIENT! c) CA EXC'S: (1) A lawyer may be disbarred/suspended for corruptly or willfully making an unauthorized appearance as attorney for a party to an action or proceeding (2) A lawyer must also promptly reveal to the court improper conduct by a juror or prospective juror of which the lawyer has knowledge. 3) Fairness to opposing party & counsel: a) You can't obstruct opposing counsel's access to a witness UNLESS that person is (1) YOUR CLIENT (2) a FAMILY MEMBER of your client, or (3) an AGENT of your client b) You can't hide a witness c) You can't alter/destroy documents crucial to investigation d) You can't pay a witness to testify, apart from the normal reimbursement costs (pkng, lost wages, etc.) (1) EXC: When witness = EXPERT witness...these CAN be paid "a reasonable fee", but CANNOT be contingent upon the testimony given or upon the outcome of the case e) You can't make reference to inadmissible evidence in, say, your closing argument f) GR: You can't give personal opinion in court (1) EXC: You can recommend to jury how they should decide based on the given evidence g) CA: A lawyer must not threaten to present criminal, administrative or disciplinary charges in order to obtain an advantage in a civil dispute c. Problem re trial publicity: When can you make statement to press? 1) TEST: "Att'y can say anything so long as it doesn't have a SUBSTANTIAL LIKELIHOOD OF MATERIALLY PREJUDICING THE CASE AT BAR." OK for att'y to: a) Identify his client to press b) Call on public for help c) State client's position d) Refer to anything mentioned in the public record 2. Confidences & secrets [MR 1.6; DR 4-101]: INCORPORATE EVIDENTIARY PRINCIPLES a. Fundamental rule: Confidences CAN'T be revealed if DETRIMENTAL TO CLIENT or W/O CLIENT'S CONSENT...duty continues even AFTER representation has ended. 1) "Confidences" = Anything protected by the attorney/client privilege/learned through CONFIDENTIAL COMMUNICATION a) Applies in judicial or other proceedings where lawyer may be called upon to provide evidence under compulsion of law; att'y CANNOT be required to divulge client confidences b) Duty of confidentiality may exist even if the attorney doesn't accept the case!! 2) "Secrets" = Anything else learned by att'y during course of representing client, no matter from what source; ie, anything that a client would not want revealed a) MR 1.6 BROADENS definition of "secret": It imposes confidentiality on information relating to the representation even if it was acquired before/after the relationship existed, & doesn't require the client to indicate information that's to be kept secret b) "Secrets" different from "confidences" in that lawyer CAN be compelled to reveal secrets of client 3) NOTE re: Att'y's employees & associates [EC 4-2, 4- 4]: It's NOT an ethical violation for an att'y to share the client's confidences with his employees & associates UNLESS THE CLIENT OBJECTS, but att'y has duty to assure that the employees/associates maintain that confidentiality (otherwise att'y liable) a) ATTY/CLIENT (1) Subject matter (a) Confidential communication... (b) ...made TO AN ATTORNEY... 1/ Reasonable mistake as to attorney status 2/ Actual attorney (c) ...for PURPOSES OF LEGAL SERVICES (even if attorney refuses services) (2) Holder: CLIENT, but attorney has DUTY to assert the privilege (a) If the client = a CORPORATION, the attorney will be held to represent a NON-CONTROLLING EMPLOYEE of that corporation IF: 1/ Subject matter of the consultation relates to corporation's business, AND 2/ Employee's superior sent him to the attor ney (3) Exceptions: If these exceptions apply, attorney MAY reveal confidential info, BUT ISN'T REQUIRED TO (a) Criminal problems 1/ Client intends to commit a crime a/ MC: If your client indicates intent to commit ANY crime, att'y may reveal that intent along w/any information necessary to prevent its happening b/ MR: If your client indicates an intent to commit a crime of IMMINENT DEATH/GBH, you may only reveal information NECESSARY TO PREVENT IT 2/ Client seeks criminal/fraudulent advice from lawyer or lawyer gives criminal/fraudulent advice: Such advice is NOT covered by confidentiality & may be revealed if called upon to do so a/ EG: Client to lawyer: "I've just shot my wife: what do I do now?" (b) Att'y problems 1/ Malpractice or other allegation of wrongdoing: If client accuses att'y of malpractice/other wrongdoing, att'y MAY reveal confidential information necessary to RESPOND to that allegation, but ONLY TO THE PROPER AUTHORITY 2/ Client perjury/threatened perjury: You can, as last resort, tell the judge, BUT NO ONE ELSE! 3/ Collection of fees: you can reveal whatever confidential information is necessary to collect a fee that is owed, but again, you can only reveal that information to the proper authority (c) Identity of client & fact/amt of retainer: CAN be revealed 1/ CA EXC: A written fee K in CA is deemed to be a CONFIDENTIAL COMMUNICATION! (d) Client consents: Any time the client makes an INFORMED CONSENT AS TO THE DISCLOSURE, you're free to reveal confidential info TO THAT EXTENT b) QUALIFIED ATTY WORK PRODUCT (1) Subject matter: (a) Party's statement (b) Witness' statement (c) Expert's report: discoverable if expert is TESTIFYING (2) Holder: ATTORNEY (3) Exceptions: CAN be overcome on a proper show ing of need/hardship c) ABSOLUTE ATTY WORK PRODUCT (1) Subject matter (a) Attorney's MENTAL IMPRESSIONS made in preparation for trial (b) Trial tactics (2) Holder: ATTORNEY (3) Exceptions: NONE

III. MAINTAINING THE INTEGRITY OF THE LEGAL PROFESSION A. Unauthorized practice of law [MR 5.5; DR 3-101]: Look for situation where LAWYER IS ASSISTING A LAYPERSON to practice law 1. "Practice of law" defined: "ANYTHING REQUIRING LEGAL JUDGEMENT, AS OPPOSED TO JUST LEGAL KNOWLEDGE": while it's OK for a layman to pass on legal knowledge, it's NOT OK for a layman to be making legal decisions for a client. If a lawyer in any way assists the layperson to dispense legal advice, the lawyer is subject to discipline. a. 2 common examples here: 1) Lay tax advisors: If lawyer places this person in position to be making legal decisions on part of a client., we have unauthorized practice of law situation a) Att'y sends client to lay tax advisor & tells client, "he'll answer ALL your questions involving your taxes." It's OK for tax advisor to advise as to taxability of certain items. But it's NOT OK for tax advisor to be MAKING ARGUMENTS FOR THE CLIENTS AS TO WHY CERTAIN THINGS SHOULD BE DEDUCTIBLE...that's a LAWYER'S job (legal judgement)! 2) Estate planners: Same as above b. It's OK for att'y to use paraprofessionals (paralegals, law clerks), SO LONG AS LAWYER SUPERVISES THEIR WORK & STANDS BEHIND IT c. It's also OK for att'y to counsel a layman as to the practice of law IF THAT LAYMAN WANTS TO REPRESENT HIMSELF d. Fee splitting w/NON-LAWYERS: NO GOOD!!! Considered unauthorized practice of law 1) But you CAN pay non-legal personnel with $ derived from your clients; you just can't split fees with them 2. Lawyers practicing other professions: If you're admitted to practice law & decide to do something else for a living, you are STILL subject to discipline AS a lawyer if you piss around B. Reporting professional misconduct when att'y becomes aware of it [MR 8.3; DR 1-103]: 1. Others: If att'y learns of professional misconduct by OTHER ATT'Y OR BY JUDGE, he must report it to appropriate authority a. EXC: if the action is covered by duty of confidentiality, you CAN'T reveal it! 2. Yourself: (CA): a. A lawyer must report to the appropriate authority, IN WRITING, within 30 days of the time the lawyer has knowledge of any of the following: 1) The filing of 3 or more lawsuits in a 12-month period against the lawyer for malpractice or other wrongful conduct committed in a professional capacity 2) The entry of judgment against the lawyer in any civil action for fraud, misrepresentation, breach of fiduciary duty, or gross negligence committed in a professional capacity 3) The imposition of any judicial sanction against the lawyer, except sanctions for failure to make discovery or sanctions of less than $1000 4) The bringing of an indictment or information charging a felony against the lawyer 5) The conviction of the lawyer, including a plea of no contest, of any felony, or any misdemeanor committed in the practice of law, or in any manner such that a client of he lawyer was the victim, or a necessary element of which involves improper conduct of the lawyer, or a conspiracy or solicitation of another to commit a felony or such misdemeanor. 6) The imposition of discipline by any authority in or out of state 7) Reversal of judgment in a proceeding based in whole or in part upon misconduct, gross incompetent representation, or willful misrepresentation 8) Any claim or proceeding against any firm in which the attorney was a partner at the time of the conduct complained of unless the lawyer knows the matter has already been reported. b. A lawyer CANNOT participate in ANY AGREEMENT THAT PRECLUDES A REPORTING OF A VIOLATION OF THE CA RULES