Legal Ethics Outline
I.
II.
Attorney-Client Privilege
a. Prohibits a court from compelling the revelation of confidential communications
between an attorney and a client
i. Only the client, as the holder of the privilege, may waive the privilege
ii. When the client is a corporation, the privilege extends to communications
between the lawyer and a high-ranking corporate official
1. This means that the entity can waive the privilege as to
confidential communications made between the lawyer and the
entity’s officers/directors requiring the lawyer to testify about these
confidential communications, unless the lawyer also represents the
officer/director in an individual capacity and the confidential
communications were made with the officer/director in an
individual capacity (because then the individual holds the
privilege)
b. Exceptions to the Privilege
i. Under the ABA Rules and California rules, the privilege does not apply if
the client seeks the attorney’s services to enable or aid anyone to commit
any future crime or fraud (duty of confidentiality still applies here though)
ii. Also, in California, the privilege is inapplicable if the attorney reasonably
believes that the disclosure of confidence is necessary to prevent the client
from committing a future crime that is likely to result in substantial bodily
harm or death
Duty of Confidentiality (owed to client)
a. Prohibits the attorney from revealing any confidential information relating to the
representation of the client (e.g., statements made by the client; observations
made by the attorney regarding the client; statements from third parties relating to
the client)
i. Exceptions:
1. Consent of the client after consultation
a. Attorney also has implied consent to reveal what is
necessary to render his legal services
i. Example: Your client has synthesized a new steroid
and has hired you to get a patent on the drug. You
may reveal the client’s invention to the Patent
Office because it is necessary to render your legal
services.
2. Crimes
a. ABA Rule
i. Attorney may reveal confidential information about
a client if he reasonably believes disclosure is
necessary to prevent a future crime involving
substantial bodily harm or death
b. California
III.
i. There is no clear ethical exception to disclose
confidential information, even for imminent
substantial bodily injury or death, but the California
evidence code overrides the attorney-client
privilege to prevent substantial bodily harm
3. Defending Yourself
a. Attorney may disclose confidential information about a
client if necessary to establish a personal claim or defense
i. Examples:
1. The client sues attorney for malpractice;
2. The client brings disciplinary actions against
the attorney; and/or
3. The client refuses to pay the attorney,
forcing him to sue the client for fees
4. Attorney may disclose confidential information if compelled by
law, other controlling ethical duties, or a final court order
b. Scope of the Duty
i. Source of the information does not matter
ii. “Anything related to the representation of a client” is construed very
broadly and can include business or political consequences (isn’t limited
to information directly related to legal services)
iii. Ethical standard is broader than the evidentiary attorney-client privilege
and can apply whether or not the information is privileged
c. Duty applies regardless of whether client asks it to remain confidential or whether
its revelation might harm or embarrass the client.
d. Duty continues indefinitely, even after representation has ended
Duty of Loyalty (owed to client)
a. If a concurrent interest of the attorney, another client, or a third party materially
limits or is directly adverse to loyal representation, the attorney has a potential or
an actual conflict of interest
i. Attorney may not take on the representation, unless:
1. He reasonably believes he can represent everyone effectively;
2. He informs each affected client;
a. If the duty of confidentiality prevents full disclosure, no
consent is possible
3. Client consents in writing; and
4. The consent is reasonable
a. If a reasonable lawyer would not advise a client to consent,
then the consent is invalid
ii. If conflicts emerge only after representation begins, the attorney must
disclose potential and actual conflicts as they arise, must get further
consent, and must withdraw if consent is not reasonable
b. Imputed Disqualification
i. Attorney and all the members of his current firm are treated as a unit for
the purpose of conflicts (this includes any group of lawyers that work
together closely or share responsibilities) (e.g., private firms, government
agency offices, corporate law offices)
1. Exceptions:
a. When the conflict arises from previous government
services
b. When the conflict of the lawyer arises from a purely
personal interest or relationship that would not affect the
ability of other firm members to represent the client
i. 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 in the firm
ii. Imputed disqualification only applies to an attorney’s former firm (that
former firm cannot take on a matter) if:
1. The matters are substantially related or the same; and
2. Any remaining lawyer has confidential material information
c. Remedies
i. Refuse to take the case
ii. Advise multiple clients to get separate counsel
iii. Withdraw
d. Most Common Conflicts
i. Conflicts Between Lawyer’s Interest and Client’s Interest
1. A lawyer must not have a proprietary (economic) interest in the
cause of action or subject matter of the litigation
a. Exception:
i. An attorney may get a lien on property to secure
payment of fees; and
ii. An attorney may work on a contingent fee basis if
permitted for the type of case involved (e.g.,
contracting for a percentage of the damages
awarded or settlement received)
2. A lawyer should not become interested in the subject matter of the
litigation (e.g., proprietary interests)
a. Exceptions:
i. An attorney’s lien on property to secure payment of
fees
ii. An attorney can work on a contingent fee basis
3. Business Transactions or Adverse Interests:
a. Attorney may enter into business with client or obtain an
interest adverse to the client only if:
i. Terms are fair to the client;
ii. Fully disclosed in an understandable writing;
iii. The client has an opportunity to consult an outside
lawyer; and
iv. The client provides written consent
b. An attorney representing a company can agree to accept
“payment” in the form of shares of stock equal to the value
of the legal services performed if:
i. The services have been valued reasonably;
ii. The transaction is documented;
iii. It is fair and reasonable under the circumstances
known to the lawyer at the time the interest was
acquired; and
iv. The interest doesn’t distort the lawyer’s advice to
the company
c. Attorney Serving as Director of a Corporation
i. There is no automatic prohibition against an
attorney serving as a director of a corporate client,
but it is strongly discouraged (likely to compromise
attorney-client privilege and confidentiality, as well
as create conflicts of interest)
ii. An attorney may serve as a director, officer, or
member of a legal services organization that is not
the attorney’s employer, as long as the attorney
doesn’t knowingly participate in a decision or
action of the organization that is adverse to the
attorney’s clients
4. Publication Rights Contracts
a. Under ABA Rule
i. Attorney may not enter into a contract for the rights
to tell the story of a client until representation has
ended
b. California Rule
i. Discourages publication rights contracts before the
end of the proceedings, but tolerates them if the
judge is satisfied that the client clearly understands
and consents
5. Loans and Advances to the Client
a. ABA Code and Model Rules
i. A lawyer is prohibited from rendering financial
assistance to the client in the context of
contemplated or pending litigation
1. Exceptions:
a. Attorney may advance court costs
and litigation expenses (and
repayment can be contingent on the
outcome); and
b. Attorney representing an indigent
client can pay court costs and
expenses of litigation on behalf of
the client
b. California Rule
i. Attorney cannot promise to pay a client’s debts to
gain his business (cannot “buy” clients)
ii. After the lawyer is hired, he may lend the client
money for any purpose as long as the client gives
him a written promise to repay the loan
6. Limiting Liability for Malpractice
a. Attorney cannot prospectively limit his malpractice liability
when he enters into a relationship with his client (or
condition returning a client’s case file upon termination or
withdrawal on the client signing a liability release form)
b. An attorney can only settle a malpractice claim after giving
written advice to the client to consult an outside lawyer first
7. Use of Information
a. Use or communication of information relating to the
representation of a client to her disadvantage ordinarily
violates the duties of both loyalty and confidentiality
8. Gifts to the Lawyer (or Lawyer’s Family)
a. ABA Rule:
i. Attorney may not solicit a substantial gift from a
client
ii. A legal instrument that gives an attorney (or his
family) a substantial gift cannot be drafted by the
attorney, unless the client is the attorney’s relative
iii. Attorney may accept a gift from a client, though, as
long as it meets general standards of fairness
b. California only prohibits soliciting a gift, not drafting the
legal instrument
9. Close Relationships with Other Lawyers in the Same Matter
a. ABA Rule:
i. Close relations with other lawyers in the same
matter can create potential conflicts
1. “Close relations”
a. Includes immediate family (i.e.,
spouse, parent, child, or sibling)
b. California extends this rule to any intimate relationship
(e.g., your own lawyer or client, your roommate, etc.)
10. Trial Counsel as a Necessary Witness
a. Attorney cannot serve as counsel and witness in the same
trial
i. Exceptions:
1. 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
2. Additional ABA Exception
a. If the attorney has distinctive value
in the case, and withdrawal would
impose substantial hardship on the
client
3. Additional California Exceptions:
a. If the testimony is to be given to
anyone but a jury; or
b. If the client consents in writing
ii. Conflicts Among Clients
1. Generally, attorney may represent two clients with potential
conflicts with the reasonable consent of each client, but it is almost
never proper if their interests are in actual conflict
2. Opposite Sides of the Same Matter
a. It is never reasonable to assert a claim by one client against
another client in the same case (if parties are in direct
conflict)
i. Example: Attorney’s firm represents Texaco in
labor matters. When an employee of Texaco asks
attorney to represent him in a suit against Texaco
for cutting off his benefits, the attorney cannot take
the case (imputed disqualification) because the
parties are in direct conflict and it would be
unreasonable
3. Opposing Present Client In a Simultaneously Pending Matter
a. ABA Rule
i. If attorney (or his firm) represents a company in one
area (e.g., securities litigation), he probably may not
represent an opposing party, even if the case is in an
unrelated matter (e.g., labor dispute).
1. This is because even if the attorney secures
the consent of each party, the consent will
likely be found to be unreasonable
b. California
i. Absolutely prohibits a lawyer from taking a case
against a client he is currently representing in
another matter, even if there is no substantial
relationship between the two cases
4. Two Clients With Inconsistent Positions
a. A lawyer may argue both for and against a certain cause or
law in two different cases, as long as he receives the
consent of both clients
i. Attorney must withdraw if either client would be
disadvantaged
5. Joint Representation of Multiple Clients in the Same Matter
a. Criminal Matters
i. Dual representation is never allowed if attorney is
appointed counsel
ii. Dual representation in all other situations is
permissible as long as it doesn’t impede the 6th
Amendment’s guarantee of effective assistance of
counsel
1. A lawyer has provided ineffective assistance
of counsel (and was incompetent) if her
conduct falls measurably below the
performance ordinarily expected of lawyers
and her conduct affected the outcome of the
trial
b. Requirements (civil matters and criminal cases)
i. An attorney may represent two clients in civil
litigation if their interests are only potentially in
conflict, provided that the attorney:
1. Reasonably believes he can represent all of
them effectively;
2. Discloses potential conflicts and
disadvantages to each client;
3. Gets written consent from each client
a. Consent can be inferred from the
terms of an insurance policy calling
for the insurer to retain counsel to
defend the insured against
malpractice actions; and
4. Consent is reasonable
ii. If a potential conflict becomes a present, actual
conflict (e.g., insurer wants to settle, doctor wants a
trial to prove his innocence; one defendant can plea
bargain if he testifies against the other defendant),
the attorney cannot continue to represent both
parties.
1. The attorney should advise both parties
about the conflict, advise one or both of
them to get separate counsel, withdraw, or
continue to represent one party (e.g., the
party you have obtained confidential
information about), but withdraw from the
other client (e.g., that would be hurt by that
confidential information).
a. Also, once an actual conflict
becomes evident, the attorney should
refrain from sharing each party’s
confidential information with the
other party
iii. Examples: Representing both the insured and the
insurance company (e.g., Insurance company hires
attorney to represent the company and a doctor in a
malpractice action), an employee and the company
as co-defendants in civil litigation, or both spouses
in a prenuptial agreement, divorce, or will.
iv. NOTE: If a malpractice insurance policy gives the
insurer the right “to investigate and settle any
claims as it deems appropriate,” this creates a
potential conflict in itself because it places the
insurer in a superior bargaining position and
prejudices the doctor’s right to go to trial with fair
representation
6. New Clients In Matters Related to Former Clients (or a New Client
Sues a Former Client)
a. An attorney owes a continuing duty to preserve information
gained in confidence during a former representation of a
client
b. If the attorney obtained any confidential information during
his representation of the former client that is relevant to the
new client’s case, the attorney may not take on the
representation of the new client unless both parties consent
(in California, written consent is required)
i. If the former client will not give consent, the
attorney must withdraw from representing the new
client
c. The attorney may not take on the new client’s case if the
matter is the same or substantially the same as the former
client’s matter (ask if the representations overlap in
function, scope, or information)
7. Former Government Lawyer, Law Clerk, Judge, or Arbitrator Now
In Private Practice
a. ABA Rule
i. If the attorney himself worked personally and
substantially on a matter while in government
practice (i.e., a specific dispute between specific
people over specific issues), the attorney cannot
work on that same matter later in private practice,
unless the government agency consents in writing
1. Regulations are not a “matter” (so you can
work on regulations in a government office
and then move to private practice and
become involved in litigation disputing the
meaning of those regulations)
ii. Other members of the attorney’s firm may represent
a client in the same matter, if:
1. The former government attorney is screened
off;
2. The former government attorney does not
share in any part of the fee in the matter
a. He can receive salary or partnership
shares established by prior
independent agreement, however;
and
3. The government employer is notified
b. California is silent on this (has not adopted ABA Rule)
iii. Conflicts Due to Third Party Interference
1. Accepting Fees from a Third Party (someone other than the client)
a. Attorney’s sole duty is to his client, not to any third party
b. An attorney may only accept compensation for legal
services from a third party if:
i. The client consents after consultation;
ii. The third party does not interfere with the lawyer’s
independent judgment or the representation; and
iii. The arrangement does not compromise the client’s
confidential information
2. Organizational Clients
a. When a lawyer represents a corporation/entity, the lawyer
owes his duties to the entity and must act in the best interest
of the entity, not its officers or employers
i. In dealing with the organizations’ officers and
employees, the lawyer must explain the identity of
the client when the lawyer knows or should know
that the organization’s interests are adverse to those
of the officers/employees
ii. If the lawyer meets with an employee/officer of the
entity in his individual capacity and it is clear that
the individual is seeking legal advice, is meeting
with the lawyer in his capacity as an attorney, and
engages in confidential communications with the
attorney, the lawyer will have entered into an
attorney-client relationship with the individual
officer/employee too (and all confidentiality rules
apply to the officer or employee as well)
1. This is permissible subject to
loyalty/conflict of interest rules and
disclosure/consent requirements
b. If a lawyer for an entity knows that an officer or employee
is engaged in action, intends to act, or refuses to act in a
matter related to the representation that is a violation of a
legal obligation to the organization, or a violation of a law
that could be imputed to the organization, and is likely to
IV.
result in substantial injury to the entity, the lawyer must
proceed as is reasonably necessary in the best interests of
the entity
i. Ask for reconsideration of the matter;
ii. Advise that separate legal opinion be sought on the
matter;
iii. Refer the matter to a higher authority within the
entity, including, if warranted by the seriousness of
the matter, the highest authority that can act on
behalf of the organization
1. When the organization’s highest authority
insists on action that is a clear violation of
law and is likely to result in substantial
injury to the organization, the lawyer may
withdraw.
c. If the attorney cannot proceed in the best interests of the
entity because he cannot reveal a client-officer’s or clientemployee’s confidential information to the entity, he must
withdraw from representing the entity
Attorney’s Fiduciary Duties Owed to the Client
a. Attorney Fees
i. Fee agreements are typically contractual between the attorney and the
client, and should reached early and clearly
ii. Non-Contingent Fee Cases
1. ABA Rule
a. Fee agreements should include:
i. How the fee is calculated;
ii. What services are covered; and
iii. The lawyer’s and client’s duties
2. California Rule
a. Fee agreements should include how the fee is calculated,
what services are covered, and the lawyer’s and client’s
duties, and also 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
iii. Contingency Fee Agreements
1. When They May Be Used
a. ABA Rule
i. Contingency fee agreements may be used in every
type of action, except for family law (divorce) and
criminal matters
b. California
i. California is silent on criminal matters (so they are
probably ok)
ii. Contingency fee agreements are allowed for
divorces, provided the fee arrangement doesn’t
encourage divorce
2. Requirements:
a. Must be in a signed writing;
b. Must contain:
i. How the fee is calculated (the attorney’s percent);
and
ii. How costs will be handled (what expenses are to be
deducted from the recovery and whether the
percentage is taken before or after expenses are
deducted)
c. California also requires them to contain:
i. How the client will be charged for other related
legal work; and
ii. A statement that the attorney’s fees are not set by
law (are negotiable)
iv. Amount of Fees
1. ABA Rule
a. Fees must be reasonable (taking into account labor,
novelty, difficulty, skill and timing required, result
obtained, lawyer’s experience, other demands on the
attorney, the fee arrangement, etc.)
b. Arbitration should be used to resolve fee disputes if
possible
2. California Rule
a. Fees must not be unconscionably high
b. The court will not enforce a contract containing
unconscionably high fees
c. Lawyer must agree to submit to arbitration if the client
desires
3. Charging an additional fee or percentage of the settlement/damages
awarded in addition to an already contracted for, and owed, fee as
a condition to continue performing legal services is
unreasonable/unconscionable
v. Fee Splitting (sharing part of your recovery/settlement with someone else)
1. A lawyer may split fees with other lawyers in his firm
2. A lawyer may split fees with lawyers outside the firm if:
a. The total fee amount meets ethical standards;
b. There is written disclosure to the client; and
c. The client consents
d. ABA also requires that the division is proportional to the
actual work done by each attorney, unless each attorney is
jointly responsible for the action (California does not
require proportionality)
3. Referral Fees (where the primary attorney pays a portion of his fee
to a second attorney who referred the client to him)
a. ABA rules do not allow referral fees
b. California allows referral fees as long as
i. The client knows all of the terms and consents in
writing;
ii. The total fee is not unconscionable; and
iii. The total fee is not increased because of the referral
fee
4. A lawyer may not split fees with a non-lawyer
a. Exceptions:
i. Death benefits for a lawyer’s services can be paid to
the deceased lawyer’s firm or heirs for a reasonable
time
ii. Fees can be shared with non-lawyer employees via
pension and compensation plans
iii. Lawyer may share court-awarded legal fees with a
non-profit organization that employed, retained, or
recommended the lawyer in the matter
vi. Partnership with Non-Lawyers in Providing Legal Services
1. A lawyer cannot enter into a partnership with a non-lawyer to
provide legal services (non-lawyers cannot be partners,
shareholders, or officers, and cannot control or direct a lawyer’s
professional judgment)
a. However, a lawyer can enter into a reciprocal referral
arrangement (not for fees) with another lawyer or nonlawyer professional, provided that:
i. It is not an exclusive arrangement; and
ii. The attorney explains the arrangement to the client
at the time of the referral
b. Client Trust Accounts
i. Attorney has a duty to safeguard his client’s property by labeling it and
storing it in a safe place such as an office safe or bank safe deposit box
ii. Money held for the client (including moneys received on the client’s
behalf and advances for fees, costs and expenses) must be placed in a
client trust account
1. Attorney may not borrow or commingle client’s funds with the
attorney’s money (money cannot touch)
2. Attorney may not steal money from their clients
3. An individual interest-bearing trust account should be used to hold
client funds (and the interest belongs to the client)
a. Exception: “Pooled Trusts Accounts”
i. An attorney can hold smaller funds for several
clients at once as long as it:
1. Is for a short period of time;
V.
2. The money is contained in a checking
account; and
3. The interest goes first to pay the bank’s
service charges and the remainder goes to
the California State Bar to fund legal
services for the poor
iii. If there is a disputed claim for fees or if a third party has a lawful claim
over a client’s funds or property in the attorney’s custody, the attorney
may withhold the disputed portion in the client trust account until
resolution of the claim
iv. Duties Related to Client Trust Accounts:
1. Keep good records for the client;
2. Render accountings;
3. Notify the client of moneys received on his behalf; and
4. Promptly pay money owed to the client
5. California also requires:
a. The attorney to keep records of client property for five
years after final distribution; and
b. Make these records available to the State Bar for audits
Competence & Other Common Sense Duties Owed to the Client
a. Duty of Competence
i. Attorney has a duty to render competent service to his client.
1. “Competence”
a. The legal knowledge, skill, thoroughness, and preparation
reasonably necessary for the representation
ii. Failure to render competent service can subject the attorney to:
1. Discipline by the Bar;
2. Disqualification as counsel in a litigated matter; and/or
3. Civil malpractice liability
iii. If an attorney does not know the relevant law, he cannot take on a matter
unless:
1. He can put in the time to learn it without undue expense or delay to
the client; or
2. He can associate with a lawyer competent in the area
iv. It violates the duty of competence to take a case when not in the physical
or mental shape to take it (including just being overbooked)
v. Malpractice Distinguished from Lack of Competence
1. Malpractice action is brought by an injured plaintiff (not by the
State Bar as in duty of competence cases) to get compensation (not
for punishment or protection of the public as in competence cases)
in a civil court (not a disciplinary tribunal as in competence cases)
2. An ethical violation may be relevant evidence of malpractice, it
does not create a presumption of malpractice
3. A malpractice claimant must prove a legal claim, such as breach of
contract, negligence, or breach of fiduciary duties.
b.
c.
d.
e.
a. If negligence is claimed, the plaintiff must prove a breach
of the duty of care owed by the attorney (the skill, care, and
judgment that a reasonably prudent practitioner would have
used under the circumstances; or the skill, care, and
judgment that a reasonably prudent specialized practitioner
would have used, if the attorney held herself out as a
specialist)
Accepting Representation
i. An attorney is free to accept or reject any case
ii. An attorney should accept, as part of his duty to the public and the
profession:
1. The case of the defenseless or oppressed “if the only reason to
refuse is selfish”; and
2. A fair share of pro bono work each year (50 hours of pro bono
work for truly indigent clients is urged by the ABA)
iii. An attorney must reject a case if he would violate a law or disciplinary
rule in taking it
Scope of Representation
i. The client makes the ultimate decisions about her substantive rights (e.g.,
whether to testify in a criminal case, waive a jury trial, enter a plea, plead
guilty or accept a settlement offer) (and must therefore, always be
presented with any offers to plea or settle)
1. If a client asks about illegal conduct, the lawyer can and should
explain that the conduct is illegal, but must not recommend illegal
conduct or advise the client how to act illegally and get away with
it
ii. The lawyer makes decisions on procedure and legal strategy (e.g., what
discovery to seek or what motions to file)
iii. If the lawyer and client disagree, attorney can limit the scope of
representation, with client consent.
Duty to Communicate
i. Attorney has a duty to keep his client informed about the case and any
substantial developments in the litigation (including any settlement offers)
1. This includes any settlement offers and returning phone calls
a. If a settlement offer is made to joint clients, the attorney
should consult each client prior to entering into
negotiations, and must convey the offer to each client and
make sure they agree on the division of the settlement
before accepting the settlement
2. Communication regarding the case made by the attorney’s
secretary, or letting one client to a case act as another client’s
interpreter, is inadequate to fulfill this duty to the client. Lawyer
has an obligation to personally communicate with his clients about
the case (or at least provide a neutral interpreter)
Duty of Diligence
i. Attorney must act on behalf of his client with reasonable diligence and
promptness and must see the matter through to completion
1. A lawyer should not make a fee agreement with a client that could
result in curtailing services in the middle of the relationship
f. Duties on Withdrawal from Representation
i. An attorney may enter into an agreement with his client that he will
withdraw if the client refuses a settlement offer
ii. A client cannot be penalized for firing an attorney (attorney cannot charge
a fee as a penalty or forfeiture)
iii. Three ways an attorney might leave a case before the matter is resolved
1. Client Fires Attorney
a. If there is a contingency fee agreement, attorney may
recover fees for work already completed (under quantum
meruit) if and when the former client wins.
2. Mandatory Withdrawal
a. An attorney must withdraw from a pending case if:
i. Representation would violate a law or ethical rule
(e.g., if continuing would require assisting in a
crime; if attorney’s physical or mental shape
renders him incompetent; if attorney would have to
pursue a frivolous claim);
ii. The lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent
the client; or
iii. The lawyer is fired
3. Permissive Withdrawal
a. ABA Rules
i. A lawyer may withdraw from representation of a
client for any reason (e.g., refusal to pay fees) if it
can be done without material harm to the client
(looking at how far the case has progressed;
whether a substitute attorney could adequately
represent the client; and how many legal services
the attorney has already provided)
ii. A lawyer may also withdraw from representation
(but may not reveal confidential information) if:
1. The client persists in a course of action
involving the lawyer’s services that the
lawyer reasonably believes is criminal or
fraudulent;
2. The client has used the lawyer’s services (or
his firm’s services) to perpetrate a past
crime or fraud;
a. Attorney may make a “noisy
withdrawal” if he needs to disavow
any documents, opinions, etc. that
3.
4.
5.
further a continuing crime (but this
does not allow revealing client
confidences)
The client insists upon taking action that the
lawyer considers repugnant or with which
the lawyer has a fundamental disagreement;
The client fails substantially to fulfill an
obligation to the lawyer regarding the
lawyer’s services and has been given
reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;
The representation will result in an
unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult
by the client; or
Other good cause for withdrawal exists
6.
b. California
i. A lawyer may not withdrawal:
1. Merely because withdrawal will not have a
materially adverse effect on the client;
2. If the client has used the lawyer’s (or his
firm’s) services to commit a past crime or
fraud; or
3. If representation will result in an
unreasonable financial burden on the lawyer
c. The court may deny the attorney’s withdrawal and attorney
must continue in the representation notwithstanding good
cause for terminating the representation
iv. Procedure for Withdrawal
1. Attorney must provide client with:
a. Timely reasonable notice prior to terminating legal
services;
b. Any unspent fee and expense advances; and
c. The client’s papers and property (including work product)
2. Attorney must return all unspent fees, papers, and property, even if
the client has not yet paid the attorney (California forbids
withholding a client’s materials for attorney’s fees)
g. Other Duties
i. Attorney must be reasonable and sensible
ii. Sexual Relations with Clients
1. California Rule 3-120 (fill in from class notes)
a. A member of the Bar shall not:
i. Require or demand sexual relations with a client
incident to or as a condition of employment
ii. Have sexual relations with a client
VI.
1. Exception: Where the two had a consensual
sexual relationship before they became
lawyer and client (lawyer should still make
sure his ability to represent the client will
not be affected)
Duties of Candor to the Public & Dignity of the Profession: Advertising &
Solicitation
a. Traditional professional ethics rules banned attorney advertising, but the Supreme
Court has held that lawyer advertising is commercial speech protected by the First
and Fourteenth Amendments, and a state may regulate lawyer advertising, but
may not flatly prohibit it unless it is false or misleading
b. Advertising (lawyer’s communication with the public at large, or a segment of the
public)
i. Generally (ABA and California)
1. Advertising and communications must be true and not misleading
2. Every advertisement must include the name and office address of
at least one lawyer or firm that is responsible for its content
3. Payments for Recommending a Lawyer’s Services
a. Lawyer may not give anything of value to a person for
recommending the lawyer’s services
i. This does not include paying the reasonable cost of
advertising or paying the usual fee charge by a legal
service plan or qualified lawyer referral service
ii. This does not include fee splitting under California
rules
ii. Additional California Restrictions
1. Lawyer advertisements may not contain:
a. A guarantee or warranty of the outcome of a case;
b. Words or symbols that suggest quick cash or a quick
settlement;
c. An impersonation of a lawyer without disclosing that it is
an impersonation;
d. A dramatization of an accident or event without disclosing
that it is a dramatization; and
e. A contingent fee offer that does not warn that a client who
loses a case must still pay litigation costs if that is the
arrangement
2. California rebuttably presumes these specific actions to be false or
misleading unless the lawyer can prove otherwise:
a. Communications delivered or made in person to a potential
client who is in the hospital or who is suffering physical or
mental stress (e.g., sending flowers to an accident victim);
b. Mailings (or even flowers sent) that seek fee-paying work
and that are not clearly labeled as advertising material; and
c. Communications containing testimonials or endorsements
without a disclaimer that the testimonials or endorsements
VII.
are not a promise about the results in the potential client’s
case
iii. Claims of legal specialties
1. An attorney may explain his fields of practice (e.g., “practice
limited to federal courts”), but he can only claim specialization if:
a. He is a patent attorney;
b. He is an admiralty attorney;
c. He has earned a certificate in a specific legal subject issued
by the California Board of Legal Specialization; or
d. He has earned a certificate from a private organization that
is either approved by the ABA or identified clearly as an
organization not approved by the State
iv. Claiming Partnerships or Affiliations
1. Attorneys may not improperly claim partnerships or affiliations
2. In California, it is a presumed violation of ethics rules for an
attorney to state or imply that he is affiliated with, or has a
relationship with, a government agency or non-profit.
v. Attorney must keep records of the content and placement of any
advertisements for two years
c. Solicitation (individualized contact with a lay person, initiated by the lawyer or
her agent, that is designed to entice him to hire the lawyer)
i. Attorney cannot seek professional employment for pecuniary gain by
initiating a live (face to face), telephone, or real-time electronic contact
with a prospective client who is not a lawyer and with whom the attorney
has had no prior professional, personal, or family relationship
1. Lawyer will not be subject to discipline for soliciting pro bono,
free services
ii. Runners and cappers (agents) cannot do anything that a lawyer cannot do
iii. Targeted Direct-Mail Solicitations
1. Absent actual knowledge that the prospective client does not wish
to receive communications from the attorney, the attorney may
send truthful, non-deceptive letters to persons known to face a
specific legal problem
2. The first page of the letter and the envelope must be labeled as
“advertising materials” (recorded communications must begin and
end with an announcement)
iv. Group and Prepaid Legal Service Plans
1. A lawyer may participate in a group or prepaid legal service plan,
even though the plan uses personal contacts and live telephone
contacts to offer the plan to persons who are not known to need
legal services
2. A lawyer member may personally contact a group that might wish
to adopt a legal service plan for its members
Duty of Candor to the Court & Fairness to Your Adversary
a. A lawyer is prohibited from engaging in conduct involving dishonesty, fraud,
deceit, or misrepresentation
i. This duty generally even overrides conflicting duties of loyalty and
preservation of confidences
b. Duty to State the Law Truthfully
i. Knowingly making a false statement of law to the court is subject to
discipline
ii. Attorney has a duty to be candid about the law, and a duty to cite to
adverse authority if:
1. It is from a controlling jurisdiction; and
2. It is directly on point
iii. Presenting frivolous claims or defenses is unethical and is subject to
disciplinary action
c. Duty to Present Facts and Evidence Truthfully
i. An attorney may not:
1. Make a false statement of material fact to a court;
2. Offer evidence he knows to be false to a tribunal; or
3. Fail to correct a false statement of material fact or law that he
previously made or presented to the court
ii. Attorney may not counsel or assist a witness to testify falsely or to become
“unavailable” to testify
iii. Attorney may pay a witness for:
1. Travel;
2. Meals;
3. Lodging;
4. Time lost from a job; and
5. Reasonable fees for expert witnesses, so long as the fee is not
contingent on the content of the testimony
iv. Lying Witnesses
1. If an attorney knows that a witness will lie in their testimony, he
cannot put that witness on the stand (rule is permissive if the
attorney only has a reasonable belief that the witness will lie or
there is some doubt)
v. Clients Who Commit Perjury
1. An attorney cannot knowingly facilitate client perjury.
a. In civil cases, the attorney can refuse to allow the client to
testify
b. In criminal cases, the attorney who knows for certain his
client has, or is about to, lie on the stand must:
i. Counsel the client to testify truthfully, not take the
stand, or recant his false testimony;
ii. If that fails:
1. ABA: the attorney must attempt to withdraw
from the case
2. California: the attorney may attempt to
withdraw (permissive)
iii. If withdrawal fails:
1. ABA: The judge must be told (because the
right to counsel and the duty of
confidentiality do not shield perjury)
2. California: The client may testify in a
“narrative” fashion, but the attorney may not
do anything that furthers the deception (e.g.,
ask questions; argue points to the jury)
iv. A lawyer for a defendant in a criminal case is not
subject to discipline for putting the prosecution to
its burdens and requiring every element of the case
to be proven beyond a reasonable doubt (e.g., even
if the lawyer knows that there is incriminating
evidence against his client and his client might be
guilty, he can still argue to the jury that the
prosecution failed to prove identity (or some other
element) and that the jury should believe the
defense witness’ testimony)
c. The obligation to correct perjury ends with the completion
of the proceedings
d. Duty to Produce Evidence
i. Attorney cannot knowingly and unlawfully alter, destroy, falsify, or
conceal/hide evidence or counsel his client to do so
1. Example: If attorney does not know that a client’s ring is the same
ring as recorded on a burglary surveillance tape, but doesn’t want
the client to wear it for fear that it might create an implication that
he is guilty, the attorney may counsel the client to remove the ring;
however, if the attorney counsels the client to remove the ring with
the intention to hide evidence, the attorney can be subject to
discipline
ii. If an attorney is reasonably certain that something given to him by the
client and in his possession is a fruit or instrumentality of a crime, he must
turn it over to the authorities (e.g., police, DA) in a reasonable time (e.g.,
can do tests or authenticate it first)
1. This is true even if the fruit or instrumentality is cash paid to the
attorney for legal services
2. Attorney may not disclose where he received the item or what was
said to him by the client about the fruit or instrumentality (duty of
confidentiality)
iii. Lawyer learns about the location of real evidence from an attorney-client
privileged communication, but does not take possession
1. No turn over duty
2. No disclosure duty
iv. Lawyer learns about the location of real evidence through an attorneyclient privileged communication and then removes the evidence from its
original location or alters it
1. Turn over duty
VIII.
2. Must disclose the original location and condition of the evidence
v. Lawyer takes possession of an item from a third party
1. Turn over duty
2. Disclosure duty
e. Ex parte proceedings (unusual communications with the judge outside of the
presence of the adversay)
i. Attorney’s duty of fairness requires him to reveal all relevant information
to the judge in an ex parte proceeding, and this overrides the normal
presumption that the attorney is not to volunteer facts harmful to his
client’s case
f. Duty to Uphold the Law
i. Preventing the Client From Causing Death or Substantial Bodily Harm
1. ABA Rules
a. Attorney may disclose confidential facts to prevent death or
substantial bodily harm
2. California Rules
a. Provides no explicit exception to the confidentiality rules to
prevent a client from causing death or substantial bodily
injury
ii. Fraud
1. Attorney has no duty to reveal a client’s fraud, unless failure to do
so would constitute “assisting” in the crime
2. An attorney can be compelled to reveal confidential information
under the “future crime or fraud” exception to the attorney-client
privilege
iii. Assisting in a Crime
1. An attorney may not counsel his client on how to break the law
2. If a client persists in a course of action that the attorney reasonably
believes is criminal or fraudulent, but he is not assisting in the
crime, the attorney may withdraw
a. The attorney may make a “noisy withdrawal,” but he
should try to protect confidences about all past conduct and
even future crimes
3. If continued representation would require the attorney to commit
or assist in committing a crime, he must withdraw
Additional Duties of Fairness
a. Dealing Fairly with Others
i. Communication with adversaries and third parties
1. Attorney cannot make false statements of fact to other parties or
third parties
2. Attorney cannot violate the legal rights of a third person in order to
obtain evidence, or use means with no purpose but to delay,
burden, or embarrass them
ii. Communication with anyone who is represented by counsel on the subject
of your inquiry
IX.
1. Unless a law specifically authorizes it, attorney cannot
communicate with them on the matter without consent of their
counsel.
2. Organizational Entities
a. Corporate counsel consent is required for interviews of
management or anyone whose statements can be imputed to
the organization for liability or as an admission
b. Corporate counsel consent is not required before
interviewing a former employee of the corporation, unless
they were extensively exposed to confidential and
privileged information
b. Dealing With the Press
i. The defendant’s right to a fair trial is balanced against the press’s and
public’s right to know
ii. Attorneys (and their agents) must avoid making out of court statements
that they reasonably should know have a substantial likelihood of
materially prejudicing the case
1. Exceptions (things that may be told to the press/public through out
of court statements):
a. Matters in the public record or routine booking
information;
b. Warning the public, informing them about an ongoing
investigation, or asking them for help in the matter; and
c. Statements required to protect the client from substantial
undue prejudice from recent publicity that was not selfinitiated
c. Special Duties of Prosecutors
i. The duty of a prosecutor is to seek justice, not necessarily win cases.
ii. Prosecutors have a duty to:
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);
3. Timely disclose evidence favorable to the defense; and
4. Exercise reasonable care to prevent associates from making
prejudicial pretrial publicity
iii. Prosecutors cannot make comments that have a substantial likelihood of
heightening public condemnation of the accused
Preserving the Dignity of the Court and Additional Duties
a. Duty to Expedite Cases
i. ABA Rule
1. Lawyers have an affirmative duty to expedite cases
ii. California Rule
1. Lawyers cannot delay cases:
a. To harass an adversary; or
b. For their own personal gain or convenience
iii. Attorney has a duty to follow valid procedural rules and court orders,
unless he is making a good faith challenge to their validity (e.g., cannot
abuse or obstruct discovery)
b. Duty to Preserve the Impartiality and Decorum of the Tribunal
i. Attorney may not try to improperly influence anyone
1. Before and during trial, the attorney may not talk to any
prospective or empanelled member of the jury
2. After the trial is over, if local law permits, the lawyer may
interview jurors, as long as he does not harass them or influence
their future jury service
ii. Attorney may not use trickery or “chicanery” (e.g., referring to
inadmissible evidence or matters unsupported by evidence; asserting
personal knowledge of the facts at issue)
iii. Duty to Avoid Disruptive Conduct
1. An attorney must refrain from abusive or hostile conduct,
belligerence, or theatrics
a. Under the ABA Rules, a lawyer “may stand firm against
abuse by a judge, but should avoid reciprocation”
c. Additional Duties to the Profession and the Public
i. Unauthorized Practice of Law (“doing things that call for the professional
judgment of a lawyer”)
1. Lawyer may not engage in the unauthorized (or unlicensed)
practice of law (in order to safeguard the public from
incompetence)
a. Practicing in a state in which the attorney is not admitted is
a violation, unless it is allowed under exceptions for “pro
hac vice” appearances in a specific matter or multijurisdictional practices
2. A lawyer is subject to discipline for assisting a nonlawyer to
engaged in the unauthorized practice of law (e.g., negotiating with
insurance adjusters; discussing proposed settlements with clients;
explaining releases and executing legal documents)
a. It is permissible for nonlawyers to perform investigation
and witness interviews, however
ii. Conduct Generally
1. A lawyer should not engage in conduct involving dishonesty,
fraud, deceit, or misrepresentation (including in their private
business or personal affairs)
iii. Reporting Misconduct of Attorneys
1. ABA Rules
a. A lawyer is required to report another lawyer’s or judge’s
violation of the ethical rules if it raises a substantial
question as to that lawyer’s honesty, trustworthiness, or
fitness as a lawyer
2. California Rules
X.
a. California does not require a lawyer to report another
lawyer’s or judge’s violation of the ethical rules, but
instead requires self-reporting by the lawyer of any felony
charges, civil liabilities for fraud or breach of fiduciary
duty, disciplinary actions taken against him in another
jurisdiction, and other difficulties
Duties of Subordinate Lawyers
a. If an attorney is under the control and supervision of another attorney (e.g., a
senior partner) who orders the attorney to take an action in violation of the ethical
rules:
i. If the attorney’s ethical violation is clear, the attorney is subject to
discipline
ii. If the attorney’s ethical violation is debatable, the partner is solely
responsible
iii. The senior partner is always in violation and subject to discipline if he
ordered or ratified the action, had direct supervisory authority, and knew
of the conduct at the time
iv. In California, the attorney can be disciplined for merely knowing about a
fellow firm member’s disciplinary violation and doing nothing to prevent
it