CA Bar Essay Slapdowns – Professional Responsibility

Concurrent Conflicts of Interest
A lawyer owes her client a duty of loyalty and must avoid conflicts of interest. A concurrent conflict of interest exists when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client, former client, or third person.
Addressing Concurrent Conflict
Under the ABA rules, a lawyer may still undertake a representation despite the concurrent conflict if the lawyer reasonably believes that she can competently and diligently represent each affected client despite the conflict, and each affected client gives informed consent, confirmed in writing. The California Rule is different in the following respects: (i) it does not contain a “reasonable lawyer” standard; (ii) it applies to potential and actual concurrent client conflicts; and (iii) it generally requires “informed written consent,” but (iv) it requires only “written disclosure” to the client when the conflict arises out of the lawyer’s prior relationships or personal interests.
Duty of Confidentiality
Under the ABA Model Rules of Professional Conduct, an attorney must not reveal information relating to the representation of a client. The duty of confidentiality continues to apply even after the attorney-client relationship has terminated. In California, the duty arises from the Attorney’s Oath in which the attorney promises to “maintain inviolate the confidence and at every peril to himself or herself to preserve the secrets of his or her client.”
Acting Competently to Preserve Confidentiality
As part of the duty of confidentiality, the ABA rules also specifically require a lawyer to act competently to preserve confidentiality—ie, make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation.
Duty of Competence – What Factors into Competent Representation
The ABA Rules provide that a lawyer must act competently and with care in handling legal matters for that client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In California, a lawyer is subject to discipline if he intentionally, recklessly or repeatedly fails to perform legal services with competence.

In determining whether a lawyer possesses the requisite knowledge and skill, relevant factors include the relative complexity and specialized nature of the matter, the lawyer’s general experience, the lawyer’s training and experience in the field in question, the preparation and study the lawyer is able to give the matter, and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question. In California, competency also includes the duty to supervise the work of subordinate lawyers and nonlawyer employees.

Failure to Train Employees
A lawyer having direct supervisory authority over a non-lawyer must make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
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Scope of Representation
A lawyer may counsel and assist a client to make a good faith effort to determine the validity, scope, meaning or application of a law.
Fee Agreement – CARequirements for a Valid Agreement and Exceptions
California requires a written fee agreement if the fee will exceed $1000 except in the following situations: (i) the client is a corporation (ii) the client states in writing that she does not want a written fee agreement (iii) the legal services are the same kind of services that the client has previously received and paid for (iv) the lawyers acted in an emergency to protect the client’s rights or (v) a writing is impractical for other reasons. The ABA Rules do not require a non-contingent fee arrangement to be in writing, although it is recommended.
Duty of Fairness
Although not specifically addressed in the ABA Rules, California forbids a lawyer from threatening to bring disciplinary, administrative, or criminal proceedings to gain an advantage in a civil dispute
Dealing with Potential Witnesses/Third Parties
A lawyer cannot request a person other than a client to refrain from voluntarily
giving relevant information to another party. The only exception is where the person is a relative, employee or agent of a client and the lawyer reasonably believes that the person’s interest will not be adversely affected by refraining from giving such information.
Dealing With and Reporting Evidence
A lawyer owes a duty of fairness to the opposing party and counsel. Under the
ABA and California rules, a lawyer must not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value, or counsel or assist another person to do any such act
Failure to Report Ethical Violation
Under the ABA Rules, a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority. There is no corresponding California rule.
Accepting Compensation From Third Parties
Under the ABA Rules, a lawyer must not accept compensation for representing a client from someone other than the client unless: (i) the client gives informed consent (ii) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and (iii) information relating to the representation of a client remains confidential. California further requires that the client’s informed consent be in writing.
Duty to Avoid Prejudicial Extrajudicial Statements
A lawyer who is participating in the litigation of a case must not make an
extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing the proceeding.
Prosecutor’s Duty: Disclosure of Evidence
In addition, a prosecutor has an affirmative duty to make timely disclosure to the defense of all evidence or information that tends to negate the guilt of the accused
Prosecutor’s Duty: Probable Cause
The prosecutor must refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause.
Advancing Litigation Fees and Living Expenses
The ABA Rules prohibit a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that (i) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter and (ii) a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client

The California Rule is similar, but it is different in three other respects: (i) it applies in all contexts, not just litigation; (ii) it prohibits a lawyer from “buying” a potential client with a promise to pay the potential client’s personal or business debts; and (iii) after the lawyer is hired, he may lend the client money for any purpose if the client gives him a written promise to repay the loan

Contingent Fee Agreement: What It Must State/Include
Any contingent fee agreement must indicate litigation and other expenses to be deducted from the recovery and whether such expenses are to be deducted before or after the contingent fee is calculated
Duty of Competence
The ABA Rules provide that a lawyer must provide competent representation. Competent representation requires the legal knowledge, skill thoroughness, and preparation reasonably necessary for the representation. In California, a lawyer is subject to discipline only if he “intentionally, recklessly, or repeatedly” fails to perform legal services with competence.
Convincing a Client to Accept a Settlement Offer
A client has ultimate authority as to whether to accept a settlement offer. In the course of representing the client, the lawyer must act in the client’s best interest at all times.
Sexual Relationship with Client
Under the ABA Rules, a lawyer must not have sexual relationship with a client. This rule applies even if the relationship is consensual and even if the client is not harmed. The sole exception to the rule is when the lawyer and client had a consensual sexual relationship before the lawyer-client relationship. California does not prohibit sexual relationships between lawyer and client unless the lawyer: (i) demands sexual relations with the client as a condition of professional representation (ii) enters into sexual relations with the client by coercion or undue influence or (iii) represents the client incompetently because of sexual relationship
Counseling Conduct to Participate in Criminal Conduct
A lawyer must not counsel or assist a client in conduct that lawyer knows is criminal or fraudulent
Disbursement of Settlement Funds – TP Claimant
A third person (typically a client’s creditor) may have a lawful claim against funds or other property in the lawyer’s custody, and the lawyer has a duty to protect the third-person claim from wrongful interference by the client. If the third person’s claim is not frivolous, the lawyer must hold separate the disputed portion of the funds or other property until the third person’s claim is resolved.
Engaging in Fraud and Dishonesty
A lawyer must not engage in conduct involving dishonesty fraud, deceit or misrepresentation
Unreasonable Fee
The ABA Rules state that an attorney’s fee must be reasonable. Among the many factors to be considered in determining the reasonableness of a fee include: the time and labor required; the novelty and difficulty of the questions involved; the skill required to perform the legal service; and the experience, ability, and reputation of the attorney. The California Rules similarly prohibit “unconscionable” fees.
Duty Not to Assist in The Unauthorized Practice of Law
A lawyer must not assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law. The practice of law is defined as anything that would call for the judgment, reasoning, or skill of an attorney. A lawyer may hire a currently-disbarred lawyer as a paralegal or legal secretary, but the individual must not engage in activities that constitute the practice of law. Furthermore, the lawyer must be ultimately responsible for the paralegal’s work
Withdrawal of Representation and Withholding of Legal Services
Under the ABA Model Rules of Professional Conduct and under the California Rules, a lawyer has a duty to act on behalf of a client with reasonable diligence and promptness and must see the matter through to completion. However, the lawyer may withdraw from the case if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services
Proprietary Interest in the Cause of Action
A lawyer must not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client. However an exception to the rule prohibiting such interests is that a lawyer may contract with a client for reasonable contingent fee in a civil case. Thus, it must be determined whether the contingent fee was permissible.

A lawyer may accept property in return for services provided that this does not involve a proprietary interest in the cause of action or subject of litigation.

Contingent Fee: Where It Cannot Apply
Under the ABA Rules, a lawyer is subject to discipline for using a contingent fee in a domestic relations case where the contingency is the securing of a divorce or the amount of the property settlement. The California Rules are silent on contingent fees in domestic relations cases but under California case law, a contingent fee is prohibited if it encourages the dissolution of marriage or is otherwise against public policy.
Reasonable Fee
The ABA Rules state that an attorney’s fee must be reasonable. Many factors are considered in determining the reasonableness of a fee, including: the time and labor required; the novelty and difficulty of the questions involved; the skill required to perform the legal service; and the experience, ability and reputation of the attorney. The California Rules similarly prohibit “unconscionable” fees
Protection of Client’s Interests Upon Termination of Representation
Upon termination of representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, which includes surrendering papers and property to which the client is entitled. California law specifically forbids a lawyer from retaining the client’s papers or property in order to force the client to pay the lawyer’s fee.
Limiting Liability for Malpractice
A lawyer must not settle a claim or potential claim for malpractice liability with an unrepresented client or former client without advising that person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel.
Conflict of Interest Regarding Former Client
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing. Furthermore, a lawyer who formerly represented a client in a matter must not use information relating to the representation to the former client’s disadvantage except as permitted or required by the RPC or when the information has become generally known and must not reveal information relating to the representation except as permitted or required by the RPC
Revealing Former Client’s Information
Under the ABA Rules and California case law, a lawyer who has formerly represented a client in a matter may not thereafter reveal information relating to the representation except as permitted or required by the Rules as with respect to a current clien
Mandatory Withdrawal
A lawyer must withdraw from the representation when he is discharged by his client
Business Transaction with Client – Three Requirements to Enter
The lawyer’s acceptance of property in return for services is also subject to scrutiny as a conflict of interest because it may be a business transaction between the lawyer and the client.

A lawyer must not enter into a business transaction with a client or knowingly acquire an ownership or other pecuniary interest adverse to a client unless (i) the transaction and terms under which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client (ii) the client is informed in writing of the desirability of seeking and is given a reasonable chance to seek, the advice of independent legal counsel on the transaction and (iii) client understands the lawyer’s role in the transaction, including whether the lawyer is representing the client, and the client gives informed consent in a signed writing

Financial Loss Exception
The ABA Rules provide that a lawyer may disclose information relating to the representation a client to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services to commit the crime or fraud. California does not recognize an exception for financial loss
Exception for Disclosure Permitted by Ethical Rules
There are also circumstances under which the ethical rules permit or require the lawyer to disclose information relating to the representation
Reporting Corporation’s Violations
A lawyer who represents an organization must act in the best interest of the organization. If the lawyer learns facts that would cause a reasonable lawyer to conclude that someone associated with the organization is engaged in action, intends to act, or refuses to act in a manner related to the representation that is a violation of a legal obligation to the organization, or a violation of law that reasonably might be imputed to the organization, and if the violation is likely to result in substantial injury to the organization, the lawyer must proceed as is reasonably necessary in the best interest of the organization, Usually this involves reporting the violation to a higher authority in the organization. If necessary, the lawyer must report it to the organization’s highest authority.

The ABA Rules provide that if the lawyer reports the violation to the organization’s highest authority but the highest authority fails to take timely appropriate action, the lawyer may report the relevant information to appropriate persons outside the organization. This is true even if the information would otherwise be protected by the duty of confidentiality. However the lawyer’s authority to report to outsiders applies only to the extent that the lawyer reasonably believes that reporting is necessary to prevent substantial injury to the organization

The California Rules prohibit a California lawyer from disclosing confidential information about the violation to an outsider, unless disclosure is necessary to prevent a criminal act that will cause death or substantial bodily harm to someone. In certain instances, federal law will preempt this rule and outside reporting is permitted.

Advertising and Communication of Field of Practice
Lawyer advertising is generally permissible as long as it is not false or misleading. This rule applies to all kids of communications, including personal communications. A lawyer may tell the public in which field or fields of law she does or does not practice. However a lawyer may not claim to be a “certified specialist” in a certain field unless she has been certified by an organization approved by the state bar or accredited by the ABA. If so, the communications must clearly identify the organization that certified her
Solicitation
A lawyer must not seek fee-paying work by initiating personal contact with a specific person who is not a lawyer and with whom the lawyer has no personal, family or prior professional relationship. Furthermore, a lawyer is prohibited from using an agent to do that which the lawyer must not do, violate or disciplinary rule. Thus a lawyer must not use an agent to contact prospective clients in a manner that would violate the rule against solicitation
Payment for Recommending A Lawyer’s Services
Except in connection with the sale of a law practice, a lawyer must not give anything of value to a person for recommending the lawyer’s services
Communicating With Represented Person or Corporation
In the representation of a client, a lawyer must not communicate about the matter with a person she knows to be represented by counsel in the matter unless the other counsel has granted permission or she is otherwise authorized by law or court order to make the communication. The rule applies even if the represented person initiated the communication or consented to it.

When the represented party is an organization, the lawyer must obtain the consent of the organization’s counsel before communicating with a constituent of the organization: (i) who supervises or regularly consults with the organization’s lawyer about the matter (ii) who has authority to obligate the organization with respect to the matter or (iii) whose conduct in the matter may be imputed to the organization

Conflict of Interest Rules for Government Employees
A lawyer owes her client a duty of loyalty and must be careful to avoid conflicts of interest. Under the ABA Model Rules, a lawyer generally must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed consent, confirmed in writing. Researching and drafting legislation also does not constitute a “matter” for purposes of this conflict rule. California has no counterpart ethics rule.
Imputation of Conflicts/Government Lawyer Conflicts
If a conflict of interest does exist, the firm will have to take steps to make sure that the matter can be assigned to a different lawyer within the firm.

If a former government lawyer is disqualified, other lawyers in the firm for which the disqualified lawyer now works may handle the matter if all of the following conditions are met: (i) the disqualified lawyer is screened from any participation in the matter (ii) the disqualified lawyer does not share nay part of the fee earned in the matter and (iii) the appropriate government agency is promptly notified of the screening arrangement so the agency can make sure that the screening is adequate