My Bar Sets - Professional Responsibility

Lawyer-Client Relationship - Acceptance of Client

No duty to accept representation, BUT court appointments must be accepted absent good cause.

Lawyer-Client Relationship - Prohibited Objectives of Employment

Shall not bring an action for the purpose of harrassing or maliciously injuring a person, or present a claim/defense not warranted under existing law unless it can be supported by a good-faith argument for modification or reversal

Lawyer-Client Relationship - Formation

Begins when the client reasonably believes the relationship exists

Lawyer-Client Relationship - Scope, Objective, and Means of Representation

• Client = Objective and Goals

  • Ex.)

    • Testify/enter plea deal in crim

    • Waive right to jury trial/accept settlement offer

• Lawyer = Strategy and method BUT still must consult with client

Scope, Objective, and Means of Representation - Settlement Offers (MR)

A lawyer must communicate all settlement offers to clients, and they hold final decision

Scope, Objective, and Means of Representation - Settlement Offers (CA)

Must communicate written settlement agreements to client, or oral offer in a civil matter if it is a significant development

Scope, Objective, and Means of Representation - Limitation by Attorney

Permitted to limit scope of representation if it is reasonable under the circumstances, not prohibited by law, and client consents

Termination of Attorney Client Relationship - Withdrawals (Types)

1. Mandatory Withdrawals

2. Permissive Withdrawals

No matter what, owe client a duty to mitigate harm potentially befalling client, and to give reasonable notice and return all client’s papers and property

Mandatory Withdrawals - Model Rules

1. If failure to do so would result in violation of rules of ethics or other laws

2. Lawyer’s mental/physical health renders it unreasonably difficult to carry it out effectively

3. Client discharged them unless court requires continuation

Mandatory Withdrawals - California

1. If lawyer knows/reasonably should that the representation would violate California RPC or State Bar Act

2. If physical/mental condition materially impairs ability to represent client

3. Knows/reasonably knows that client asserted claim without probable cause/to harass or injure other person

4. Client discharged unless court requires continuation

Permissive Withdrawals - Model Rules

General Rule = May do so it it would not materially harm client

Examples where its permissive even with material harm:

1. Client fails to fulfill obligation regarding lawyer’s services

2. Client insists on court of action lawyer finds repugnant or fundamentally disagrees with

3. Lawyer reasonably believes that client’s actions are criminal/fraud OR client used lawyer’s services for such activities

4. Client makes representation unreasonably difficult

5. Representation will cause an unreasonable financial burden to lawyer

6. Other Good Cause exists

Permissive Withdrawals - California Rules

Does not matter if it would not materially harm client.

Examples where its permissive even with material harm:

1. Client breaches material term of agreement/obligation regarding attorney for representation

2. Continued representation is likely to violate CA RPC or SBA

3. Client knowingly and free assents to termination of representation

4. Inability to work with co-counsel which indicates client’s interests would be best served by withdrawal

5. Client seeks/insists lawyer pursue crim/fraud course of conduct OR used services to advance conduct lawyer knows or reasonably believes is crim/fraud

6. Client makes representation unreasonably difficult

7. If physical/mental condition renders it difficult to represent client

8. Claim not supported under existing law/good faith argument for modification or reversal

Termination of Relationship - Duty to Return Fees and Papers

MR = Must promptly return unearned advance fees BUT may retain papers as security for fee

CA = No need to return true retainer fee BUT must return all papers regardless of payment

Fees - Reasonable Fee

Must charge a reasonable fee under the circumstances

Factors impacting that

• Difficulty of case

• Preclusion of other employment

• Development of attorney-client relationship and fee arrangement

• Lawyer’s expertise

• Customary fee for similar services in locality

Fees - Reasonable Fee (California)

Fee may not be illegal or unconscionable.

Factors impacting that

• Lawyer’s engagement in fraud/overreaching in negotiations/setting fee

• Failure to disclose material facts

• Amount in proportion to value of the services performed

• Relative sophistication of lawyer and client

• Novelty + Difficulty of questions involves + skill needed

• Likelihood that matter would preclude other employment

• Amount involved + results obtained

• Time limitations by client/circumstances

• Nature + Length of professional relationship with client

• Lawyer’s experience, reputation, and ability

• Fee fixed or contingent

• Time + Labor required

• Whether client gave informed consent

Retainer Agreement - Written Requirements (California)

Must be in writing if it is/reasonably foreseeable to be over $1000. Must be signed by both parties, contain basis of compensation, nature of legal services, contractual responsibilites, and a copy given to client

Exceptions to this:

• Corporate client

• Waiver of written contract after full disclosure of right

• Fee implied by previous services

• Emergency situations

• Impracticable

Retainer Agreement - Contingent Fees

May charge a contingent fee except in crim OR domestic relation cases

MR = Must be in writing + signed by client with calculation methodology and details of calculation for expense deductions

CA = Must be in writing + signed by both parties AND explain how fee works, disbursements and costs, extent that client must compensate lawyer for matters no in agreement, and that fee is negotiable

Retainer Agreement - Fee Splitting (Lawyers at Same Firm)

Fee may be shared between lawyers at same firm

Retainer Agreement - Fee Splitting (Lawyers at Different Firms)

MR = Permitted if in proportion to services rendered, written client consent, and fee reasonable.

CA = Not permitted UNLESS written agreement between lawyers, written consent after full disclosure, and total fee not higher solely because of fee splitting

Retainer Agreement - Fee Splitting (Referral Fees)

May not pay anyone for recommending their services UNLESS a legal service plan or approved lawyer-referral service

CA = May give gift to person who gave rec that resulted in employment as long as it was not given with understanding that the gift would be forthcoming OR additional referrals would be made or encouraged in the future

Retainer Agreement - Fee Splitting (With Non-Lawyers)

Prohibited UNLESS to lawyer’s estate, firm staff as part of compensation or retirement agreement, a court-ordered representation with non-profit org, or to lawyer’s estate/rep by lawyer who purchases the practice

Retainer Agreement - Fee Splitting (Reciprocal Referral Agreements)

Allowed if not exclusive AND client informed of nature + existence of agreement (MR = And not for indefinite duration)

Retainer Agreement - Client Funds

All funds received/held for benefit of client must be retained separately in an identifiable bank account. Absolutely NO commingling allowed. Must maintain records for at least 5 years after. If disputed amount, must keep funds until resolution.

Retainer Agreement - Notice and Delivery of Client Funds

MR = Must promptly notify client and promptly deliver

CA = Must notify within 14 days of receipt, and must deliver within 45 days or else there will be a rebuttable presumption that there is violation

Privilege and Confidentiality - Principle

Arises in three different areas:

• Duty of Confidentiality

• Work Product Doctrine

• Lawyer-Client Privilege

Privilege and Confidentiality - Lawyer-Client Privilege

Confidential communication between lawyer and client for the purpose of legal representation are protected.

Lawyer-Client Privilege - Exceptions

Does not apply if

• In effort to engage or further criminal or fraudulent activities

• Relevant to malpractice

• Civil litigation between former jointly represented clients

• (CA) Atty believes it to be reasonably necessary to prevent criminal acts that are likely to result in death/substantial bodily harm

Lawyer-Client Privilege - Duration

MR = Lasts indefinitely

CA = Lasts until the estate of the client is finalized

Privilege and Confidentiality - Work Product Doctrine

Documents prepared in anticipation of litigation are protected from discovery UNLESS there is a substantial need, and no ability to get a substantial equivalent without undue hardship

Privilege and Confidentiality - Duty of Confidentiality

Lawyer is prohibited from disclosing information relating to representation of a client unless:

• Client gives informed consent (CA = After communication about material risks + alternatives)

• Implicitly authorized to carry out representation

• An exception applies

Duty of Confidentiality - Exceptions

May reveal information protected:

• To prevent reasonably certain death/substantial bodily harm

  • CA = Reasonably necessary to prevent a criminal act that will result in death/serious bodily harm, AFTER lawyer has made good-faith effort to persuade client to not do so/prevent the harm

• Substantial financial harm to another person

• Securing legal advice

• Necessary to establish a claim/defense in controversy between client and attorney

• Comply with other laws or a court order

Conflicts of Interest - General Rules

A lawyer must not represent a client if there is a significant risk that the representation may be materially limited by the lawyer’s own interest, unless lawyer reasonably believes that he can provide competent/diligent representation to the affected client, not prohibited by law, does not involve assertion of a claim by own client against another in same litigation/other proceeding before a tribunal, and there was informed consent confirmed in writing/informed consent