california bar

Duty owed to clients:

Duty of Loyalty

Duty of Confidentiality

Duty of Communication

Duty of Diligence

Duty of Competence

Duty of Financial integrity

Duty owed to Third parties

Duty to opposing parties in litigation

Duty to accept representation

Special duty of prosecutors

Duty owed to the court

Duty of candor

Duty of honesty

Duty to witnesses and juror

Attorney duty to the public and profession

Attorney duty to public and profession

Duty to avoid unauthorized practice of law

Duty owed to client

Organization:

1)represent the organization as a entity through its duly authorized constituents.

2)Do not represent the individual employees.

3)Must act in the best interest of organization.

Injury to Organization:

ABA: lawyer knows organization likely to be substantially injured by an employee’s

action which either:

1) violates legal obligation to organization

2) violation of the law might be imputed to organization

Lawyer must proceed reasonably necessary in best interest of organization:

a) referral to higher authority AND

b) reveal information relating to representation out of organization whether or not

ABA permit such disclosure but only to extent lawyer reasonably believes

necessary to prevent substantial injury to organization. NO SIMILAR CA

EXCEPTION TO DUTY OF CONFIDENTIALITY.

Duty of Loyalty :

Potential conflict of interest: when a lawyer suspects a CONCURRENT CONLICT

may exist, BUT representation not materially limited yet.

Concurrent conflict : exists when:

1) Directly adverse to another client

2) Materially limited by responsibilities to another client , former client, third party or

lawyer’s own interest.

ABA: potential conflict require inform consent

CA: potential conflict require written informed consent

Actual conflict of interest:

ABA + CA : lawyer must not represent a client if :

1)Directly adverse to another client

2)Materially limited by responsibilities to another client , former client, third party or

lawyer’s own interest.

Exceptions to Conflict of Interest.

1) The lawyer reasonably believes she will provide competent and diligent

representation to each affected client

2) Representation not prohibited by law

3) Representation not involve assertion of a claim by one client against another

client represented by same lawyer

4) Each client give written informed consent.

CA: no “reasonably believe” requirement

Duty of Confidentiality:

ABA + CA – lawyer must not reveal any information relating to representation of client.

Exceptions:

Permit a lawyer to reveal confidential information related to representation when

1) Under CA and ABA, clients gives informed consent

2) Under CA and ABA, lawyer is impliedly authorized to reveal confidential information

to carry out representation

3a) ABA: lawyer reasonably believes necessary to prevent reasonably certain death or

serious bodily injury

3b) CA: prevent a criminal act that is likely lead to death or serious bodily injury if:

 First, Lawyer makes good faith effort to convince client not to commit act

 Second, client refuses,

 Third, Lawyer informed client of intention to reveal client’s confidences

4)ABA: prevent crime or fraud to likely produce substantial financial loss to a person SO

LONG AS client used lawyer’s services to perpetrate crime or fraud. NO EQUIVALENT

EXCEPTION IN CA.

Duty of Communication:

ABA+ CA- Lawyer must:

1) Keep client promptly informed of any decision or circumstances to which client

must provide informed consent AND

2) Reasonably consult with client about means by which to accomplish client

objectives.

Duty of Diligence

ABA+CA - lawyer should

1) act with commitment and dedication to client’s interest and

2) with zeal in advocacy on client’s behalf

*Not bound to press for every advantage that might realized for client

Duty of Competence:

Lawyer must act with skill, preparation, thoroughness and diligence of a reasonable

attorney under the circumstances. To avoid violation of duty of competence, lawyer can:

1) achieve competence through adequate preparation

2)consult with a lawyer of established competence in the field

Withdrawal : Permissive or Mandatory

Permissive: ABA – lawyer can withdraw if done without materially harming client

If withdrawal harms the client, lawyer can withdraw if:

1)client persists in course of action that lawyer reasonably believes is fraudulent or

criminal

2)Lawyer learn pervious services of lawyer used by client to perpetrate crime or fraud

3)Client insist in a course of action, lawyer finds repugnant or lawyer has fundamental

disagreement

4)Client substantially fails to fulfill obligation to lawyer for lawyer services -----lawyer

gives reasonable warning of withdrawal if obligation not met

5)representation results in unreasonable financial burden

6) client made representation unreasonably difficult

7) Other good cause exists

Permissive: CA permits withdrawal

1)clients insists on presenting unwarranted claim or defense

2)clients seeks to pursue or insists lawyer pursue, an illegal course of conduct/ conduct

prohibited by CA PR

3) client makes unreasonably difficult for lawyer to perform legal services efficiently

4) client insists lawyer engage in conduct contrary to lawyer’s judgement and advice but

not prohibited by PR rules

5) client breaches obligation to lawyer as to expenses and fees

6)continued employment will likely violate PR rules

7) inability to work with co-counsel indicates best interest of client will be served by

withdrawal

8) lawyer’s mental or physical condition compromise ability to carry out representation

efficiently

9) client knowingly and freely consents to termination

10) lawyer believes in good faith (proceeding pending before a tribunal) tribunal will find

other cause for withdrawal

Mandatory Withdrawal: ABA

1)Must withdraw from representation and subject to discipline if failure to do results in

ethical rule or other law violation

2)physical or mental condition materially impairs the ability to represent a client

CA:

1)knows or should know continued employment will violate CA PR

2) mental or physical condition renders unreasonable difficult to carry out employment

efficiently

3)knows or should know a client is asserting claim or defense without probable cause

and for purpose of harassment or malicious injuring any person

Duty of Financial integrity

Fee Amount:

ABA: cannot charge unreasonable fee

CA: cannot charge unconscionable fee

Factors determine if fee is unreasonable or unconscionable include:

1) time and labor required, novelty and difficulty of questions, skills required to

perform legal services efficiently

2) likelihood acceptance of representation will prevent lawyer from accepting other

employment

3) customary fee in the locale for the kind of work

4) amount involved and results obtained

5) time limitations imposed by client or circumstances

6) nature and length of the progessional relationship

7) lawyer’s experience, reputation and ability

8) fee is fixed or contingent

Fee Agreement:

ABA: do not need to be writing unless contingent fee agreement

CA: must be in writing unless

1) fee charged is less than 1,000 dollars

2) work is routine and regular for client

3) client is corporation

4) services are rendered in emergency to avoid foreseeable prejudice to client

Special type: Contingent Fee:

Requires clients to pay fee only if there is a favorable outcome.

ABA + CA – no contingency fee agreement allowed for domestic violence cases and in

criminal cases when lawyer represents defendant.

ABA+CA – must be in writing and state the method by which the fee is to be

determined.

CA – if expenses to client 1,000 dollars, including attny fees, the contract must include:

1) basis of compensation (hourly rates, statutory fees, or flat fees)

2) general nature of the legal services to be provided

3) contractual responsibilities of the lawyer and client

Expenses Advanced

ABA + CA : Lawyer can advance court costs/ expenses of litigation, the repayment of

which may be contingent on the outcome of the matter.

*can pay court costs and expenses of litigation on behalf of indigent client

*ABA does not require agreement to advances be in written

Funds in Dispute:

When two or more people claim interest in Client Trust Account Funds, lawyer must:

1) promptly distribute all undisputed portions

2) keep disputed portion in the client Trust Account until the dispute is resolved.

Referral Fees:

ABA: lawyer shall not compensate, give or promise anything of value to a person for

recommending lawyer’s services EXCEPT:

1) may refer clients to another lawyer or non-lawyer pursuant to an agreement

which provides for other lawyer or non-lawyer to refer clients to lawyer if

a. reciprocal referral agreement is not exclusive AND

b. client is informed of existence and nature of agreement

CA: Lawyer may pay referral fee to outside lawyer who refers a case if:

1) client knows all the terms

2) written consent

3) total fee is not increased and unconscionable because of the referral

Fee Splitting with non-lawyers:

ABA + CA: a lawyer or law firm may not share fees with non-lawyers UNLESS

1) there is a compensation plan, even though based on profit sharing arrangement.

Business entity with non-lawyers:

ABA: lawyer may not form partnership or a business entity with a non-lawyer if any of

the business activities consist of:

a) practice of law or

b) practice with, or in the form of professional corporation or association authorized

to practice law for a profit, or

c) if a non-lawyer owns an interest therein, or

d) Non-lawyer has the right to direct or control the professional judgment of a lawyer

CA: Officers, directors, shareholders and professional employees of law corporations

Rendering legal services to the public must be active members of the State Bar.

Solicitation:

ABA + CA: Lawyer cannot solicit fee-generating employment in person, live telephone,

or real time electronic contact from a specific prospective client when main reason is

pecuniary gain UNLESS the person solicited is

1) lawyer

2) has a family, close personal or prior professional relationship with lawyer

*cant use agents to solicit in a manner the lawyer cannot solicit him/herself

Duty of Candor to Tribunal

ABA: Lawyer must not knowingly:

1) make false statement of material fact or law to a tribunal or fail to correct a false

statement of material fact or law previously made

2) failed to disclose to tribunal controlling legal authority known to the lawyer,

directly adverse to the client position and not disclosed by opposing counsel

3) offer evidence lawyer knows is false

CA: Must not

1) seek to mislead judge, judicial officer, or jury by a false statement of fact or law

2) intentionally misquote to a tribunal language of a book, decision, or statute.

3) cite as authority an overruled decision/repealed or declared unconstitutional

statute while knowing its invalidity

4) assert personal knowledge of facts at issue, except while testifying as a witness.

Avoid frivolous claims:

ABA: Lawyer may not bring or defend a frivolous claim (must have a basis in law or

fact).

Action is frivolous when lawyer:

Can’ t make good faith argument for modification, extension or reversal of existing law.

CA: Lawyer must not accept, seek or continue employment if lawyer knows or should

know the objective of employment is to present a defense or claim that is not warranted

under the existing law unless supported by good faith argument for modification,

extension or reversal of an existing law.

Threatening Disciplinary Charges:

CA: Prohibits lawyers from threatening to be bring criminal, administrative or disciplinary

charges to obtain an advantage in civil dispute. Attorney can be subject to discipline.

ABA: no similar prohibition

Reporting Misconduct:

ABA: requires lawyers with knowledge of violation of ABA that raises a question as to:

Attorney’s honest, trustworthiness or fitness to be a lawyer to inform the appropriate

professional authority.

CA: no requirement to report misconduct by another lawyer