Professional Responsibilities
PROFESSIONAL RESPONSIBILITY
I. COVERAGE ON THE CALIFORNIA BAR
A. What body of law to apply.
1. The “Instructions Regarding Professional Responsibility” from the State Bar
state:
“Performance tests and/or essay questions may test knowledge of the California
Rules of Professional Conduct [similar to the ABA Model Rules, but the important
differences are marked with the asterisks], relevant sections of the California
Business and Professions Code, and leading federal and state case law on the
subject in addition to the ABA Model Rules of Professional Conduct [the modern
major rule tested on the MPRE] and ABA Model Code of Professional
Responsibility [the shrinking minority rule since the rule appear in 1983].
Professional responsibility issues may be included in conjunction with any subject
tested on the examination.”
–In the rare case when a jurisdiction is stated, apply that set of rules. Otherwise, use
CA law and strengthen your answer by flagging conflicts with ABA model rules
(majority position).
2. The CA Bar does not cover the Code of Judicial Conduct.
B. Common crossover essay topics: Torts, Contracts, Criminal Law, Performance
Test.
C. Essay Tip: Don’t chase phantom PR questions. Look at the call of the question.
Don’t just write about PR when the exam Q doesn’t even ask for it. Maybe just throw in
a sentence or two to raise the issue of PR and move on.
II. ORGANIZING YOUR ESSAY
A. The building block:
“The lawyer has a duty of (fill in a duty) to (fill in a person or thing).
(1) The bulk of duties are those owed to your client(s). These are:
Confidentiality
Loyalty
Fiduciary Responsibilities
—> Client(s). Do each separately!
Competence
…& other reasonable things
1
Professional Responsibilities
(2) Duties to entities other than your client(s). Mix and match:
Candor/Truthfulness
Court/tribunal
Fairness
Adversaries (parties & their counsel)
Dignity/Decorum
—> Profession
…& other reasonable things
Third parties
Public
Mnemonic: Clients Love Fierce Counsel: Courts Feel Differently.
Confidentiality, Loyalty, Fiduciary responsibilities, Competence, Candor, Fairness,
Dignity
B. Building an essay. Within the call of the question, outline by identifying every major
duty that you have to each individual client. Then, for each of these, look for conflicting
duties to other clients or entities. Organize your answer by discussing these conflicting
duties in a cluster, then move to the next major duty to your client and its related cluster
of duties. Finally, resurvey the problem for any miscellaneous duties, e.g., to the public
or profession, that you haven’t discussed yet.
1. Consider alternatives to your main conclusions rather than simply stopping after
the most likely conclusion. E.g., “Although unlikely for the reasons just discussed,
if the court finds that the representation of Client A overlaps with the subject of
Client B’s representation, then the duty of loyalty would require....”
2. Use headings and skip lines!
III. THE DUTY OF CONFIDENTIALITY (TO YOUR CLIENT)
A. General rule: You can’t reveal anything “related to the representation” of a client
without her consent. The rationale is to maximize candor and trust, allowing the
adversarial system to work. The duty of confidentiality applies regardless whether the
client requested it be kept “confidential” or whether its revelation might harm or
embarrass the client.
B. Distinguish attorney-client privilege, the closely related, but narrower evidentiary
rule. A-C privilege allows a client to refuse to testify and to prevent his lawyer from
testifying in court about confidential communications between them or their agents.
Unlike the earlier Model Code, the current Model Rule of confidentiality applies
whether or not the information is privileged; it is broader!
1. Scope of subject. The evidentiary privilege covers only communications
pertaining to legal services, not other subjects like business tactics or political
consequences. Confidentiality is broader, and also includes disclosures that could
reasonably lead to discovery of confidential information by a third party.
2. Source of information: In defending your client Martha against obstruction of
justice charges, her ex-husband told you extensive details of her past investments.
If the government subpoenas you to testify about this can you assert A-C privilege?
No, A-C privilege shields only information obtained from the client or her agent.
Is this information confidential under your ethical duties (i.e., duty of
confidentiality, not A-C privilege)? Yes, the source doesn’t matter.
2
Professional Responsibilities
3. Timing. The evidentiary privilege protects communications leading up to a
formal A-C relationship and continues after death, although under the *CA
Evidence Code it terminates when the client’s estate is settled. Your duty of
confidentiality continues indefinitely after the formal representation has ended.
C. Exceptions. There are major exceptions to the ethical duty of confidentiality.
1. Consent. If the client consents after consultation, a lawyer may reveal otherwise
confidential information.
Your client Vince has synthesized a new steroid, XFS, to build strength and
aggression in athletes. He has hired you to get a patent on the drug. May you
reveal his invention to the Patent Office? Yes. You have “implied consent” to
reveal what’s necessary to render your legal services.
2. Crimes.
a. Fraud or financial crimes.
Vince tells you that he is liberally distributing bribes and XFS to ball
players in his new league, to make for more predictably lucrative betting
on the games. May you reveal his intentions to prevent this future crime?
The ABA says: Yes, if he used or is using your services to commit the
crime, and the disclosure would prevent or mitigate substantial financial
loss.
—*CA has no exception to confidentiality for financial crimes.
b. Death or substantial bodily harm.1
What if, instead, Vince told you he wasn’t just going to Outlaw, but fully
Xterminate, Jesse for his lousy commentary? May you reveal his
intention to anyone? Yes, you MAY reveal only what’s necessary to
prevent the act, if you reasonably believe disclosure is necessary to
prevent reasonably certain death or substantial bodily harm.
—*In CA you must, if reasonable in the circumstances, first 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.
3. Defending yourself.
Vince (i) sues you for malpractice, (ii) brings disciplinary actions against you, and
(iii) refuses to pay you, forcing you to sue him for your fees. May you reveal
confidential information in any of these proceedings? Yes, all of these
circumstances, as well as seeking an ethics opinion, fall into the exception for
revealing information necessary to establish a claim or defense.
4. If compelled by law, other controlling ethical duties, or final court order.
Remember these: (1) past crime, past harm  atty cannot reveal this confidential info; (2) future crime, future
harm  atty may reveal this confidential info in order to prevent V’s death or substantial bodily harm; (3) past
crime, future harm  atty may reveal this confidential info in order to prevent V’s death or substantial bodily
harm (ex. client tells atty he has kidnapped V and hidden him in a warehouse on 1234 Walnut Drive. The crime
has been committed but V isn’t dead yet, so atty may reveal this info in order to prevent V’s possible death or
substantial bodily harm).
1
3
Professional Responsibilities
IV. THE DUTY OF LOYALTY TO YOUR CLIENT: CONFLICTS OF INTEREST
A. The black letter law
***HIGHLY EXAMINABLE***
1. You have a duty of loyalty to your client. If an interest of you, another client, or a
third party materially limits or is directly adverse to loyal representation, you have
a potential or an actual conflict of interest.
2. Approach: You must not take on the representation unless:
a. You reasonably believe you can represent everyone effectively, despite a
potential conflict, or that an actual conflict will not adversely affect your
representation.
b. You inform each affected client. If your duty of confidentiality prevents you
from fully disclosing information to the client that s/he needs to understand the
conflict, then consent may not be possible.
c. The client consents in writing, ~AND~
d. The consent is “reasonable,” i.e., if a reasonable lawyer would not advise
the client to consent, the consent is invalid. Because of this condition, some
conflicts can never be corrected, even with consent; on the other end of the
spectrum, clients may easily waive some conflicts like imputed
disqualification.
3. If conflicts emerge only after representation begins, disclose potential and actual
conflicts as they arise, get further consent, and withdraw if consent is not
reasonable.
4. “Imputed disqualification” means that you and all the members of your firm are
treated as a unit for the purposes of conflicts. This includes any group of lawyers
that work together closely or share responsibilities, e.g., private firms, government
agency offices, and corporate law departments. *CA follows these rules for
disqualification, but does not subject a lawyer to discipline for imputed conflicts
under its ethical rules.
—Exceptions to imputed conflicts are when a conflict arises from previous
government service, which is governed by separate rules (see IV.C.7.), and
when the conflict of the lawyer arises from a purely personal relationship that
would not affect the ability of other firm members to represent the client. In
these cases, an “ethical wall” may make representation reasonable by blocking
off any contact on the matter between the lawyer with the conflict and other
lawyers of his firm.
—Issue spotter tip: Always look for conflicts of your colleagues as well as
your own.
5. Remedies: (depends on the posture of the case, but consider): Refuse to take the
case; advise multiple clients to get separate counsels; and/or withdraw (depends on
how the fact pattern is set up).
B. Conflicts between lawyer and client.
1. Interest in the subject of litigation. A lawyer should not become “interested” in
the subject matter of the litigation.
—Exceptions: (a) An attorney’s lien on property to secure payment of fees,
and (b) work on a contingent fee basis.
Hubbell agrees to represent McDougal in a suit to recover a fancy resort
4
Professional Responsibilities
property. May he enter into an agreement with McDougal for a time-share
arrangement on the property if it is recovered? No, that’s a proprietary interest
in the COA.
2. Business transactions or adverse interests. You may enter into business with a
client or obtain an interest adverse to hers only if: (a) the terms are fair to the client,
(b) fully disclosed in understandable writing, (c) the client has opportunity to
consult an outside lawyer, and (d) your client provides written consent.
In representing a start-up dot-com company, the Wilson firm agreed to accept
“payment” in the form of shares of stock equal to the value of the services
provided. Assuming that the services have been valued reasonably, and the
transaction is documented, may it do so? Yes, if it is fair and reasonable under
the circumstances known to the lawyer when the interest is acquired.
—Be particularly cautious if the investment is by individual firm members, or
if the acquisition represents one of the firm’s major assets, as that might
distort the firm’s advice to the company, e.g., regarding disclosure of adverse
information b/c if such information is disclosed, the client’s stocks will drop in
price. Since the law firm holds these stocks, they don’t want the price to drop
and therefore will not tell the client about the adverse information.
Bubba, an attorney, is a member of the Board of Directors of Pardon, Inc.
Marc, Pardon’s Treasurer, asks Bubba to defend him in an investigation of his
alleged embezzlement of company money. May Bubba represent him? No.
Bubba has a fiduciary duty to the corporation in his personal capacity as a
member of the Board. Pardon and Mark are in direct conflict, so Bubba cannot
be loyal to both.
Attorney Andrea was asked to serve on the Board of Directors of one of her
firm’s clients. May she do so? Maybe. There is no automatic bar to serving on
a Board of Directors of a corporate client, although it is strongly discouraged,
as it is likely to compromise duties of confidentiality and loyalty.
—You may serve as a director, officer or member of a legal services
organization that is not your employer as long as you do not knowingly
participate in a decision or action of the organization that is adverse to your
clients (or else breach of duty of loyalty).
3. Publication rights contracts.
Halfway through his trial, Scott offers to sell his lawyer rights to his story to
raise some needed cash. Can the lawyer accept? Under ABA rule, not before
the representation has ended.
—*CA case law discourages contracts before the end of proceedings, but
tolerates them if the judge is satisfied that the client clearly understands and
consents. Think: CA is Hollywood so more liberal rule!!!
4. Loans and advances to your client. Do not financially assist your client with
litigation, except for: costs and litigation expenses when representing an indigent,
and the advance of expenses if the client promises to pay them back. Repayment
contingent on recovery is OK.
—*CA prohibits the promise of paying a client’s debts to gain his business,
but allows loans2 in all matters (including non-litigation matters) for any
2
Here, the key is: “paying off client’s debts” v. “lending client $$ so he can use it to pay off his debts  need
5
Professional Responsibilities
purpose after the lawyer is hired if there is a written IOU. Rule of thumb: CA
very often allows its attys to do more than what’s allowed by the ABA.
But CA requires its attys to write it down. If you are not quite sure, just
say “the atty should have written it down.”
5. Limiting liability. You cannot proscriptively limit your client’s right to report
you for ethical or other professional violations. Similarly, you cannot limit your
malpractice liability when you enter into a relationship with your client unless he
is independently represented in making the agreement.
—If a client later does make a malpractice claim against you, you can only
settle after written advice to the client to consult an outside lawyer first.
6. Use of information. Use or communication of information relating to the
representation of a client to her disadvantage and without consent violates the
duties of both loyalty and confidentiality.
7. Gifts to the lawyer or lawyer’s family. You must not solicit a substantial gift
from a client, or draft a legal instrument for a client who is not your close relative if
it provides a substantial gift to you or your relative(s).
—*CA only prohibits inducing the gift, not drafting the instrument.
8. Close relationships with the lawyer for the other side. You can’t oppose a
party represented by a relative without informed client consent. “Close relations”
clearly include: immediate family, i.e., your spouse, parent, child or sibling.
—*CA extends this rule to any intimate relationship, e.g., your own lawyer or
client, your shackmate or other intimates.
—Note: There is no imputed disqualification for this conflict, or for...one that
follow.
9. Trial counsel as a necessary witness. The general rule is you cannot serve as
counsel and witness in the same trial. The ABA allows exceptions if the lawyer’s
appearance as a witness will not prejudice the client, and the testimony is
uncontested, or regarding the nature and value of services rendered, or if your
distinctive value to the case would mean withdrawal would impose substantial
hardship on the client.
—*CA also allows testimony if it is to anyone but a jury, or if the client
consents in writing.
C. Conflicts between Clients. Generally, you may represent clients with potential
conflicts with the proper consent of all, but it is almost never proper if their interests are
in actual conflict.
1. Issue spotter tip: For each client, separately ask yourself about all duties you
may have. Watch for breach of the duty of confidentiality in multiple client
representation.
2. Opposite sides of the same matter.
Your law firm represents Texaco in labor matters, although you have done no
work for it. Lundwall, a former Texaco employee, asks you to help him sue
Texaco for cutting off his benefits. Can you do so? No. Note, imputed
to pay back the atty”
6
Professional Responsibilities
disqualification means you represent Texaco. Lundwall and Texaco are in
direct conflict. Conclusion: It’s unreasonable to represent both.
*CA Rule: It is never reasonable to assert a claim by one client against another
client in the same case.
3. Opposing present client’s interests.
Assume your firm’s only contact with Texaco is representing it in a securities
action arising from a recent corporate merger. May you now take the labor
claim of Lundwall v. Texaco? Under ABA rules, maybe. Consent of parties
opposed to each other, especially in related cases, is rarely reasonable. *CA
rules absolutely prohibit you from taking a case that is adverse to a client you
are currently representing, regardless of the relationship of the cases.
—CA statutory exception to regarding a policyholder and his insurance
company as joint clients:
Your law firm represents NorCal InsCo in a coverage action against
SoCal InsCo. May you also represent Daniel Driver, who is insured by So
Cal InsCo in an unrelated case? Yes, if SoCal is only an indemnity
provider for Daniel and not a direct party to the action.
4. Two clients with inconsistent positions.
You find yourself arguing both for and against the constitutionality of
mandatory sentencing laws in two different appeals. OK with consent of both
clients? Yes, but if either would be disadvantaged you must withdraw.
5. Multiple clients in the same matter.
Common examples of multiple representation of clients or matters in which
you might act as an intermediary are: See Below.
—Insured and insurance company;
—A corporation and any of its directors, officers, employees, or
shareholders;
—Both spouses in a divorce or will.
Kevorkian’s insurance company has hired you to defend him and it in a
malpractice action. Note this presents a potential conflict, but it is acceptable
with reasonable consent.
Now, however, Kevorkian tells you that he was indeed using medically
“unorthodox practices” on the plaintiff that are not covered by his malpractice
insurance policy. Is there now an actual conflict between Kevorkian & his
insurance company? Yes. They are in direct conflict over coverage.
Best remedy? Withdraw from both and advise them to get separate counsel. If
you are desperate for business, you can still keep Kevorkian but must ditch the
Insurance company.
You must at least withdraw from representing InsCo because you have
relevant, confidential information from Kevorkian that you cannot use in
pursuing undivided loyal representation of InsCo.
—In criminal matters, dual representation may not only compromise your
loyalty, but also impede the 6th Amd. guarantee of “effective assistance
of counsel.”
7
Professional Responsibilities
6. New clients in matters related to former clients’ matters. If confidential
information from another client might be relevant to work on a new client’s matter,
you may be violating your continuing duty of confidentiality as well as your duty
of loyalty to your former client. You cannot take on a new client with interests
materially adverse to a former client without the former client’s consent.
Nicole asks you to represent her in her divorce from Tom, but your senior
partner once represented Tom in business dealings. OK? Maybe, first note that
imputed DQ applies. It depends on the nature of work done.
What if your partner had only represented a real estate venture in which Tom
was a limited partner? Likely OK because Tom only a limited partner (you
know little about him).
—Ask: Do the representations overlap in function, scope or information?
In defending Britney in the past against copyright infringement charges
by Mariah, you were privy to all of her private recording notes. Can you
use that knowledge today to represent Christina in a similar action against
Britney? No, of course not. Use of nonpublic confidential information
against a former client is unreasonable.
If you left your firm, can your ex-firm now represent Christina in her action
against Britney? Maybe. Imputed DQ applies to your former firm if: (i) the
matters are substantially related or the same, and (ii) any remaining lawyer has
confidential material information.
7. Former government lawyer now in private practice.
a. The ABA Rule states if the government lawyer worked “personally and
substantially” on a “matter”, i.e., a specific dispute between specific people
over specific issues, then it would be a conflict to work on the same “matter”
later in private practice.
You’ve left the Defense Department where you worked on regulations
prohibiting conflicts of interest. At your new firm, can you become
involved in litigation disputing the meaning of those regulations? Yes,
regulations are not a “matter.”
What if you worked in the Department of Justice bringing enforcement
actions under the Conflict of Interest Act? You’ve now joined the Gibson
firm, which is defending Halliburton in a conflicts inquiry. May you
represent Halliburton? No, not without written consent of your
Government employer.
b. Imputed disqualification
May other members of your firm? Yes, if the three conditions for an
exception to imputed disqualification of colleagues of former government
lawyers are met:
1) You are screened off;
2) You do not share any part of the fee in the matter (salary or
partnership shares established by prior independent agreement are
OK); ~AND~
3) Your government employer is informed.
c. Judicial officers besides attorneys.
8
Professional Responsibilities
What if you were a judicial clerk on the Ninth Circuit and worked on the
U.S. v. Halliburton case? The same rules apply to clerks, judges,
arbitrators, basically people working the legal capacity here.
d. *CA does not have a counterpart to this rule for government service! It does
bar prosecutors from later participating on the defense side of the same case.
D. Conflicts due to Third Party interference.
1. General rule: Your sole duty is to your client, not to any 3rd party.
2. Compensation for your services from a third party is permitted only with
informed client consent.
3. Organizational clients. A lawyer must act in the best interest of the entity, even if
an officer, employee, or other associated person acts to the contrary.
a. The Sarbanes-Oxley Act of 20023 has generated special rules for securities
lawyers:
You are in-house counsel at Enron. You discover that the Chief Operating
Officer has materially violated securities laws in his dealings with an old
political friend. You must report the matter to the CEO or chief legal
counsel of the company. If they do not respond, you must go to or highest
authority in the board or the highest authority of the company. Finally,
if you reasonably believe it is necessary to prevent fraud or substantial
injury to the organization or investors, or if your services were used, you
may disclose confidential information without client consent to the SEC.
b. *CA specifies permissive, not mandatory, reporting to a higher internal
authority and would prohibit outside publication. However a CA lawyer
cannot be held civilly liable or subject to discipline for acting under this
federal law.
V. YOUR FIDUCIARY DUTIES TO YOUR CLIENT
A. Attorney fees. Fee agreements are typically contractual between you and your client,
and should be reached early and clearly.
1. In non-contingent fee cases, agreements should include: how the fee is
calculated; what services are covered, and the lawyer and client’s duties.
—*CA requires more than the ABA: agreements must be in writing, unless (i)
the fee is under $1000, (ii) it is with a corporate client, (iii) it is for routine
services for a regular client, or (iv) it is an emergency or impractical.
2. In contingent fee cases:
a. Written fee agreements must be signed by the client and contain:
1) Your percentage;
2) What expenses are to be deducted from the recovery; ~AND~
3) Whether your percent is taken before or after expenses.
*CA also requires that agreements state 4) how work that is not covered by the
contingency fee will be paid, and 5) that lawyers’ fees are negotiable, not
some “standard” percent of recovery.
b. Types of actions allowing contingent fees.
3
Reporting up the ladder!!
9
Professional Responsibilities
According to the ABA, contingent fees may not be used in criminal or
domestic relations cases. *CA, however, is silent on criminal matters and
OK’s contingent fee divorces, “provided the fee arrangement won’t
encourage the breakup of an otherwise savable marriage.”
c. Termination before judgment is awarded.
Bud fires Vinny from his personal injury case after he decides he’s not
nearly as good as the guys in the movies. Vinny’s put in a good year of
work, although the case has not gone to trial or settled. If Vinny had a
contingent fee agreement with Bud, can he recover any fees? Yes, if and
when Bud wins, then Vinny can recover in quantum meruit (i.e., in
proportion of the work done).
3. When are fees too high?
ABA Rule: Fees must be reasonable, taking into account the labor, novelty,
difficulty, skill and timing required, result obtained, the experience of and
other demands on the attorney, fee arrangement, etc.
*CA Rule: Fees must not be unconscionably high. So if there’s a gap b/w
“reasonable” and “unconscionably high,” then you can collect the fees!!
Bud hires Vinny to represent him in a subsequent malpractice action against
his treating doctors. Vinny drafts a new contract that provides that Vinny will
receive 1/3 of the recovery as a contingent fee, and that if Bud fires Vinny or
refuses a settlement offer that Vinny believes is “fair and reasonable,” then
Bud will immediately pay Vinny $500 per hour for all work done to date. OK?
—Contingent fee: This is OK.
—Refusal of settlement offer as grounds to withdraw? This is OK.
—$500/hr. payment? This is iffy. If it’s a good faith evaluation of Vinny’s
work, then it’s OK. If it’s functionally a penalty or forfeiture, then it is
not enforceable.
—The ABA encourages arbitration, if available, to resolve fee disputes.
*CA requires a lawyer to agree to submit to arbitration if the client wants.
4. Fee splitting. Focus on the party/entity with whom you are sharing fees:
a. It is generally OK to split fees with other lawyers in your law firm.
b. You may split fees with lawyer(s) outside your firm only if the total fee
meets ethical standards and there is written disclosure and consent. In addition,
the ABA requires that the division be proportion to the work done by each
attorney, unless each is jointly responsible for the action, but *CA does not
require proportionality.
—Referral fees are not allowed under the ABA Rules, but *CA allows them so
long as the total fee is not unconscionable and not increased due to the split.
Jacob gets a great personal injury case, but is annoyed that the case is based in
LA, which he regards as a grid locked armpit. He refers the case to Meyer,
who does all the work and wins a million bucks. Can Meyer send Jacob a
Hummer as thanks for the referral? No, Jacob did no work so it’s not
proportional. *CA is ok with consent.
10
Professional Responsibilities
c. Fee splitting with non-lawyers is generally not allowed (protects the
lawyer’s judgment and prevents the unauthorized practice of law.)
—Exceptions to fee splitting with non-lawyers are for death benefits for a
lawyer’s services paid for a reasonable time to the deceased lawyer’s firm or
heirs, and fees shared with non-lawyer employees via pension and
compensation plans.
—A lawyer may also share court-awarded legal fees with a non-profit
organization that employed, retained, or recommended the lawyer in the
matter.
5. Partnership with non-lawyers in providing legal services. This is prohibited
for any practicing lawyer. Non-lawyers cannot be partners, shareholders, officers,
or control or direct a lawyer’s professional judgment.
—You can enter a reciprocal referral arrangement with another lawyer or
non-lawyer professional, provided it is not exclusive and you explain the
arrangement to the client at the time of the referral.
—If, along with provision of legal services, a lawyer provides “law related
services” to a client herself, she is subject to the ethical rules. If the services
are provided by a separate entity controlled by the lawyer, she must take
reasonable measures to assure the client knows the protections of a
client-lawyer relationship do not apply.
B. Client trust accounts.
1. You have a duty to safeguard your client’s property by labeling and storing
it in a safe place such as an office safe or bank safe deposit box.
2. Money held for the client must be placed in a client trust account. These
include moneys received on his behalf, advances for costs, expenses and fees. No
borrowing or commingling of funds with your personal money allowed!
a. Normally, use an individual, interest bearing trust account to hold client
funds; the interest belongs to the client.
b. Smaller funds held for a short period of time for several clients at once can
be deposited into a “pooled client trust account.” This must be a checking
account, and in CA, as in most states, the interest (IOLTA; interests on lawyer
trust account) will first go to pay the bank’s service charges, and the remainder
to the CA state bar to fund legal services.
c. If you have a disputed claim for fees or if a third party has a lawful claim
over your client’s funds or property in your custody, you must withhold the
disputed portion in the client trust account until resolution of the claim.
3. You have a duty to keep good records for your client, to render accountings,
notify him of moneys received on his behalf, and pay promptly money due to
him. *CA requires you to keep records of client property for 5 years after final
distribution and to make records available to the State Bar for audits.
VI. COMPETENCE & OTHER COMMON SENSE DUTIES TO YOUR CLIENT
A. Duty of competence.
1. You have a duty to render competent service to your client. If you don’t, you
are subject to: (i) discipline by the Bar, (ii) disqualification as counsel in a litigated
11
Professional Responsibilities
matter, and (iii) civil malpractice liability.
Competence means using the legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation.
—If you don’t know the relevant law, you can’t take on a matter unless: you can
put in the time to learn it without undue expense or delay to your client, or you
associate with a lawyer competent in the area.
2. Malpractice distinguished. There are several major differences:
—An injured plaintiff, not by the State Bar, brings a malpractice action,
—To get compensation, not for punishment or protection of the public, and
—In a civil court, not to a disciplinary tribunal.
a. A malpractice plaintiff must prove a legal claim, such as breach of contract
or tort. In simple negligence cases, the malpractice plaintiff must show a
breach of a duty of due care, which for the general practitioner is the skill, care
and judgment that a reasonably prudent general practitioner in the region
would have used in the circumstances.
b. While an ethical violation may be relevant evidence of malpractice, it does
not create a presumption of it.
B. Accepting representation. The general rule is that you are free to accept or to reject
any case. “A lawyer is not a bus.”
1. You should accept, as part of your duty to the public and profession: (a) the case
of the defenseless or oppressed “if your only reason to refuse is selfish,” and (b) a
fair share of work without charge. ABA rules urge 50 hours of pro bono work a
year for truly indigent clients.
2. Conversely, you must reject a case if you would violate a law or disciplinary rule
to take it. Typical problems are if you are not in the physical or mental shape to
take the case (violating the duty of competence to the client; this includes just being
over booked!), or if the case would require making a frivolous legal argument
(violating the duty of candor to the court).
C. Scope of representation. The client makes decisions about her substantive rights
(e.g., whether to testify in a criminal case, accepting plea bargains or settlement offers).
The lawyer makes decisions on procedure and legal strategy (e.g., choice of motions,
what discovery to seek). If you disagree, you can limit the scope of representation, with
client’s consent.
Martha has asked you, her lawyer, if she must answer truthfully if the prosecutor
asks her on the stand if she had ever discussed particular stocks with certain
individuals. You should tell her about her Fifth Amendment right against
self-incrimination, but that she must testify truthfully if she takes the stand
(fulfilling duties of competence, candor, and fairness.) But the final decision to
testify is hers.
—The scope of representation does not include counseling or assisting a client in
conduct you know is criminal or advising the client how to act illegally and get
away with it!
D. Duty to communicate. You have a duty to keep your client informed about the case,
including settlement offer and returning phone calls (duty to communicate to your
clients).
12
Professional Responsibilities
—If a settlement offer is made to joint clients, you must convey the offer to all and
make sure they agree on the division of the settlement before accepting.
E. Duty of diligence. You have a duty to diligently, promptly and zealously pursue your
case to completion.
F. Duties on withdrawal from representation. There are three ways to leave a case
before the matter is resolved.
1. The client fires you.
2. Mandatory withdrawal. You must withdraw from a pending case if continuing
would violate a law or ethical rule.
Typical problems are if your physical or mental shape renders you incompetent, or
if continuing would require assisting in a crime.
Attorney Vinny tells Bud that his research shows that Bud’s got no viable
malpractice claim against his doctors. Bud insists that Vinny continue, saying, “I
don’t care if I don’t win, I just wanna make those scum pay their lawyers as much
as I paid dem.” Must Vinny withdraw? Yes. Knowing pursuing a frivolous claim
violates the duty of candor and fairness. Rule 11 kicks in too if you are in the
federal system.
—If the client is using your services to commit a crime or fraud, you must
withdraw.
3. Permissive withdrawal. You may withdraw from a case if you convince the court
there is good cause, or if it’s F.A.I.R. under ABA Rules because your client:
a. Financially burdens you (*In CA, financial burden is not grounds for
permissive withdrawal, although breach of a contract to pay expenses or fees
is.)
b. Acts illegally, or has used your services to commit a past crime or fraud.
(*In CA, use of your services to commit a past crime, is not grounds for
permissive withdrawal.)
c. Insists on pursuing an objective you find “repugnant” or “imprudent,” or
d. Refuses to fulfill an obligation to you after you warned him you’d withdraw
if he didn’t comply.
—The court may deny you withdrawal or the client a substitute attorney if it
would cause undue delay or disruption.
4. Procedures for withdrawal. In order to quit, you must:
a. Provide timely notice to the client, and
b. You also must promptly return:
1) Any unspent fee and expense advances, and
2) All material papers and property of the client. Include everything
needed to pursue the case, even work product, and even if the client has
not paid! *CA forbids withholding your client’s materials for your
13
Professional Responsibilities
money!
G. Other Duties. Be reasonable and sensible. E.g., CA Rule 3-120: Sexual relations with
clients (heavily regulated in California).
VII. DUTIES OF CANDOR TO THE PUBLIC & DIGNITY OF THE PROFESSION:
ADVERTISING & SOLICITATION
A. General Essay writing tip. Separately identify duties that can run to multiple parties,
e.g., advertising may breach your duty of candor to the public, but also your duty to
preserve the dignity of the profession. Give each a separate heading to maximize your
credit!
B. The basic idea. A state can regulate attorney advertising and solicitation subject to
the lawyer’s Constitutional right to free speech. This is protected under the limited
commercial doctrine of the First Amendment.
A state Bar rule prohibits lawyers from using direct mail to solicit personal injury
or wrongful death clients within 30 days of an accident. Stewart, the sole owner of
“Went For It” lawyer referral service, sued the Bar for the alleged right to go for it
early and often. Is the restriction Constitutional? Yes, if:
1. The government asserts a substantial interest (e.g., dignity of the legal
profession, invasion of citizen privacy); and
2. The regulation directly advances that interest; and
3. It is narrowly tailored.
C. Advertising. This refers to a lawyer’s communication with the public at large, or a
segment of the public.
1. Advertising must not be false or misleading.
a. Don’t mislead or omit material information.
Ally advertises that she prepares “simple wills” for $300. However, 95%
of the wills she writes involve “complications” that require additional
fees. Is her ad misleading? Yes.
Don’t raise unjustified expectations or make unverifiable comparisons.
*CA presumes improper any ad that contains guarantees, warranties, or
predictions of a result.
No testimonials or endorsements may be used unless there is an express
disclaimer that they are not a GWP.
2. Claims of legal specialties. You can explain your fields of practice, such as
“practice limited to federal courts.” You may not advertise claims of specialization
unless you are a “certified specialist” that has earned a certificate in a specific legal
subject issued by:
a. The CA Board of Legal Specialization, or
b. A private organization that is either approved by the ABA or identified
clearly as an organization not approved by the state.
3. Advertising must not harass or solicit someone who has indicated that she wants
14
Professional Responsibilities
to be left alone. Targeted direct mail is OK, but must meet exact guidelines for
labeling as “Advertising Material.”
4. Every ad must be labeled as advertising and, if applicable, “a dramatization” or
“impersonation.” It must identify at least one lawyer responsible for its contents.
You must keep records of the content and placement of any ad for 2 years.
5. *CA presumptions. CA Rule 1-400 lists additional specific actions presumed to
be advertising violations, i.e., they shift the burden to the lawyer to disprove a
violation.
D. Solicitation refers to individualized live contact with a layperson, initiated by the
lawyer or her agent, that is designed to entice him to hire you.
1. The rule, with built-in exceptions: Do not seek professional employment for
pecuniary gain by initiating a live, telephone or real-time electronic contact with a
prospective client with whom you have no prior professional, personal or family
relationship.
*CA presumes that communications made at the scene of an accident or en route to
a medical facility are improper, as are communications to potential clients that you
should know are not in the physical or mental state to exercise reasonable
judgment.
2. Runners and cappers (agents) can’t do anything that a lawyer can’t do.
Your Criminal Law professor fails to get tenure. He hires you, his former
student research assistant, to hand out his business cards to unrepresented
criminal defendants in the courthouse hallways, offering to represent them for
fees. OK? No, this is a solicitation by an agent.
3. Payments (anything of value) for referrals are not allowed, except for:
—Fee splitting with other lawyers under CA rules (sect. V.A.4. above), or
—Small, ordinary fees paid to authorized lawyer referral services.
VIII. DUTY OF CANDOR TO THE COURT & FAIRNESS TO YOUR ADVERSARY
(one duty almost always involves the other duty here)
A. Basic idea. A lawyer is prohibited from engaging in conduct involving dishonesty,
fraud, deceit, or misrepresentation. Even within our adversarial system these duties
generally create an ethical obligation that can override conflicting duties of loyalty to
your client and preservation of his confidences.
B. Duty to present facts and evidence truthfully. 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 that you previously made or presented to
the tribunal.
1. Client perjury. You must not knowingly facilitate client perjury.
—If the matter is a civil case, you must refuse to call the client as a witness
if you know he intends to perjure himself.
—However, criminal defendants have a 5th Amendment right to testify on
their own behalf and a 6th Amendment right to the effective assistance of
counsel. Counsel also has an ethical obligation to protect her client’s
confidences. How do you balance these rights?
Ted tells you that he intends to testify falsely that he has never owned a
15
Professional Responsibilities
typewriter to type manifestos against technology. What should you do? Take
reasonable remedial measures.
a. Counsel Ted to testify truthfully or not to take the stand, then if that
fails, try to withdraw from the case.
b. (*seeking withdrawal is permissive in CA), then
c. ABA Model Rule (strong majority): tell the judge. The Constitutional
right to counsel and the duty of confidentiality do not protect perjury.
—*CA view (case law): Allow the defendant to testify in narrative
fashion but do not further the deception. (E.g., don’t facilitate with
questions, argue points later to the jury)
What if, only after the proceeding ends, Ted tells you that he lied? Take
reasonable remedial measures along the lines above, but your duty ends with
the proceeding (after the time for appeal has run).
2. You must not counsel or assist a witness to testify falsely or to become
“unavailable” to testify. Unless local law prohibits it, you may pay basic expenses
of a witness and reasonable fees for expert witnesses, so long as the payment is not
contingent on the content of the testimony.
Ted’s brother intends to testify for him about his whereabouts during one of the
eyewitness sightings of the alleged bomber. The morning of his testimony you
discover that he intends to lie and state that Ted was with him across the country
that day. If he refuses your counsel to testify truthfully, what do you do? Refuse to
put him on the stand.
—If you have a reasonable belief, but some doubt, as to the falsity of the testimony,
the rule is permissive.
C. Duty to produce evidence.
1. Basic idea. You must not suppress any evidence that you or your client has a
legal obligation to reveal or produce, regardless of your duty of loyalty. You may
not obstruct access to, or tamper with fruits or instrumentalities of a crime.
Your client fears he will be indicted for tax fraud. He brings a ledger to your
office claiming that the information in it “could put him away forever” and
asks you to get rid of it in case authorities search his office. You cannot
unlawfully destroy, conceal or alter evidence, or obstruct another party’s
access to evidence, or counsel anyone to do so.
Erik brings you a shotgun saying he used it to kill his father. He is charged
with murder, and you are served a subpoena for the production of physical
evidence received from your client. Must you turn over the gun? Yes, it’s not
insulated by your confidential client communication.
May you disclose what Erik told you about the gun? No. Tip: Draw a bright
line b/w physical E and confidential information!!!
Neo comes to Attorney Morphius’ office with a kilo of cocaine and $100,000
cash as a retainer. He tells Morphius that he’s been selling it and needs legal
help. What must Morphius do with the drugs? Deliver them to the authority
(police or DA) because he is reasonably certain they are contraband.
16
Professional Responsibilities
May Morphius disclose what Neo told him about selling the cocaine? No, this
is confidential.
—Draw a line between physical evidence and confidential information!
2. Interference with evidence.
What if Erik told you that he threw the emptied gun into the bushes behind his
house? Your investigator finds it but leaves it untouched. Must you tell the
police about it? No, you can look but don’t touch.
If your investigator retrieves the gun and examines it, must she then give it to
the police? Yes. May she also be compelled to testify where she found it? Yes,
because an attorney or his agent may be compelled to testify as to the original
location or condition of evidence that he moved or altered.
May you reveal the source of the information about its location? No, because
that’s confidential.
—A lawyer may retain evidence for a reasonable time to prepare his client’s
case, e.g., to conduct tests so long as they will not alter or destroy the
evidence.
3. Ex parte proceedings are unusual communications with the judge outside of the
presence of your adversary. Your ethical duties of candor to the court and fairness
to your adversary require you to reveal relevant information, overriding the normal
presumption that you not volunteer facts harmful to your client’s case.
D. Duty to state the law truthfully. Knowingly making a false statement of law to the
court is subject to discipline. You have an obligation to be candid about the law, and a
duty to cite adverse authority, if it’s from a controlling jurisdiction and directly on point.
Presenting frivolous claims or defenses is unethical and subject to discipline.
E. Duty to uphold the law.
1. Preventing your client from causing death or seriously bodily injury. Some
jurisdictions mandate disclosure of facts to prevent death; under the ABA rules and
CA law (as of July 2004), such disclosure is permissive.
2. Your assistance in a crime. You have no duty to reveal a client’s fraud or crimes
causing substantial financial loss.
3. If continued representation would require you to commit or assist in committing
a crime, you must withdraw! If your client persists in a course of action that you
reasonably believe is criminal or fraudulent, but you are not assisting in a crime,
you may withdraw.
IX. ADDITIONAL DUTIES OF FAIRNESS
A. The general rule. The lawyer has a duty to behave honestly at all times in all
dealings, whether or not engaged in the practice of law.
B. Dealing fairly with others.
1. Communication with adversaries and third parties. You must not make false stmt
of fact to people or mislead them as to your interests. You must not violate the legal
rights of a person in order to obtain evidence, or use means with no purpose but to
delay, burden or embarrass them.
17
Professional Responsibilities
2. Communication with a party represented by counsel on the subject of your
inquiry. Unless a law specifically authorizes the communication, you must not
communicate with a party you know is represented by counsel on the matter
without consent of his counsel.
Your client claims that Beatrice Corp. negligently disposed of its industrial
byproducts, polluting public water supplies and giving her child a deadly
leukemia. Must you have Beatrice’s corporation counsel’s consent before you
interview its site manager? Yes. Consent is required for interviews of anyone
who supervises or regularly consults with the organization’s lawyer, who has
authority to obligate the organization, or whose conduct may be imputed to the
organization.
Must you have consent before interviewing a line worker who no longer works
for the company? No, although care should be taken to protect the
organization’s rights, e.g., protecting attorney-client privilege.
An unrepresented, non-employee who will testify for Beatrice? No.
C. Dealing with the press.
The defendant’s right to a fair trial is balanced against the press and public’s right
to know. You and your agents must avoid out of court statements that you
reasonably should know have a substantial likelihood of materially prejudicing the
case.
—Exceptions are for matters in the public record or routine booking information,
warning the public, informing them of an ongoing investigation or asking for help,
and (c) statements required to protect your client from substantial undue prejudice
from recent publicity not self-initiated.
—In addition, prosecutors must not make comments that have a substantial
likelihood of heightening public condemnation of the accused.
D. Special duties of prosecutors.
The basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors
have higher ethical obligations than criminal defense or civil attorneys. Among
other duties, they must:
1. Have probable cause;
2. Protect the accused’s right to counsel, including not subpoenaing a lawyer
to present evidence about a client unless it is essential and unprivileged; and
3. Timely disclose evidence favorable to the defense.
X. PRESERVING THE DIGNITY OF THE COURT AND ADDITIONAL DUTIES
A. Duty to preserve the impartiality and decorum of the tribunal.
1. Don’t try to influence anybody improperly. Before and during trial you must not
talk to any prospective or empanelled juror.
Before and during trial you must not talk to any prospective or empaneled
juror. After the trial is over, if local law permits, you may interview jurors so
long as you do not harass tem or influence their future jury service.
2. No “chicanery”: Trickery especially by lawyers and politicians! E.g., referring to
inadmissible material, alluding to matters unsupported by the evidence, asserting
18
Professional Responsibilities
personal knowledge of facts at issue.
3. Duty to preserve the decorum of the tribunal. Refrain from abusive or
obstreperous conduct, belligerence, or theatrics. The rules state: “A lawyer may
stand firm against abuse by a judge but should avoid reciprocation....”
B. Duty to expedite cases.
1. You have an affirmative duty to expedite cases. *CA states that lawyers must not
delay to harass an adversary, or for their own personal gain or convenience.
2. You have a duty to follow valid procedural rules or court orders, unless you are
making a good faith challenge to their validity. You must not abuse or obstruct
discovery.
C. Additional duties to the profession and public.
1. A “lawyer” must not engage in the unauthorized – or unlicensed – practice of law
to safeguard the public from incompetence. Practice in a state while suspended or
in which you are not admitted is a violation unless allowed under limited
exceptions.
a. ABA rules governing multi-jurisdictional practices allow temporary practice
by a lawyer in good standing in another state if it arises out of matters
reasonably related to the lawyers home-state practice and if affiliated with a
local lawyer and/or granted a “pro hac vice” appearance by a local court.
b. *In 2004 CA adopted more narrow rules of court governing out-of-state
lawyers in the categories of:
1) Registered legal services attorneys (practicing under supervision of a
CA attorney for no more than three years)
2) Registered in-house counsel for an institution (but no individual
representation or court appearances)
3)Litigating and non-litigating attorneys practicing temporarily in the
state.
These rules generally require the lawyer register with the CA Bar, pay dues,
satisfy continuing legal education requirements, and be subject to CA ethics
rules. Additional details apply to each category, e.g., a legal services attorney
cannot have taken and failed the CA Bar within the previous five years).
2. Conduct generally. A lawyer should not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation, including in their private business or personal
capacity.
3. Reporting misconduct. The general ABA rules require a lawyer to report any
other lawyer or judge’s violation of the Rules if it raises a substantial question as to
that lawyer’s honesty, trustworthiness, or fitness as a lawyer.
*CA does not require this, but instead requires self reporting of the lawyer’s
being charged with a felony, found civilly liable for fraud or breach of
fiduciary duty, disciplined in another jurisdiction, and other difficulties.
19
Professional Responsibilities
XI. DUTIES OF SUBORDINATE LAWYERS
A. Subordinates. If you are under the control or supervision of another attorney, e.g., a
senior partner, who ratifies or orders you to take an action violating the ethical rules, is
that OK? It depends!
1. Your ethical responsibility if it is a clear violation, you are subject to discipline.
2. Your ethical responsibility if it is a debatable problem, the partner is solely
responsible.
3. Your supervising partner’s ethical responsibility: If he ratified the action or knew
of the conduct and failed to take action, it is a violation.
B. Managing partners must make reasonable effort to ensure that everyone’s
conduct in a firm, including non-lawyer assistants, comports with the professional
obligation of a lawyer.
C. Inaction. In CA, you can be disciplined for merely knowing about a fellow firm
member’s disciplinary violation and doing nothing to prevent it.
20