Pr Checklist

PROFESSIONAL RESPONSIBILITY "CLIENTS LOVE FIERCE COUNSEL; COURTS FEEL DIFFERENTLY" [CONFIDENTIALITY, LOYALTY, FINANCIAL, COMPETENCE; CANDOR, FAIRNESS, DIGNITY] I. OVERVIEW A. Approach: (1) Spot violation; (2) State appropriate duty/standard; (3) State what lawyer should have done; (4) State what lawyer should do now. B. Lawyer Owes Duties to: (1) Client; (2) Public; (3) 3rd Parties; (4) Court; (5) Profession II. DUTY OF CONFIDENTIALITY [TO CLIENT] C. General rule: Cannot reveal anything related to the representation of C w/o consent. 1. Scope: Automatically applies. Includes disclosures that could reasonably lead to discovery of confidential info by 3P. 2. Creation: before A/C relationship is formed, or even if none is formed. 3. Duration: continues indefinitely 4. Disclaimers: Valid disclaimer to the creation of ACP or confidential relationship must be in sufficiently plain terms D. Distinguish A/C Privilege (the related but narrower evidence rule): 1. Generally 1. ACP = evidentiary privilege that allows C and L to refuse to testify about confidential communications. 2. DoC = BROADER ethical duty 2. Source: 3. ACP: only shields info from C or C’s agents. 4. DoC: source of info does NOT matter 3. Scope: 5. ACP: covers only communications pertaining to legal services. 6. DoC: covers any disclosures that could reasonably lead to discovery of confidential info by 3P 4. Duration: 7. ACP: ends when C's estate is settled. 8. DoC: indefinite E. Exceptions to DoC: 1. Consent: If C consents after consultation 9. Express informed consent 10. Implied consent to reveal info necessary to render legal services. 2. Crimes: If continued represent requires L to commit or assist in committing a crime, L must withdraw, and possibly reveal as below: 11. Death or Substantial Bodily Harm: a. ABA: May reveal what’s necessary to prevent act (*in CA, must be a crime) if you reasonably believe it’s disclosure necessary to prevent reasonably certain death/bodily harm b. CA: before you reveal, you must first, if reasonable;

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Fraud or Financial Crimes : a. ABA: may reveal CI about fraud or financial crimes if (1) a client used/using legal services to commit crime, and (2) disclosure would prevent/mitigate substantial financial loss. b. CA: No exception for fraud or financial crimes. 3. Defending Yourself: L may reveal CI to establish a claim or defense in: (1) malpractice suit, (2) disciplinary action, (3) a fee recovery suit, or (4) seeking an ethics opinion. 4. If compelled by law, other controlling ethical duties, or final court order. III. DUTY OF LOYALTY [CONFLICTS] F. GENERAL RULE: L has duty of loyalty to C – If another interest materially limits or is adverse to loyal representation, there is potential or actual conflict of interest. 1. Potential: before taking on representation : L must (1) reasonably believe can represent all Cs effectively [*CA: doesn’t require belief be objectively reasonable], (2) inform each affected client, and (3) get C's written consent. 13. Disclosure/consent may not be possible if it violates duty of confidentiality. 2. Actual: conflicts during representation : disclose potential and actual conflicts + get consent. G. IMPUTED DISQUALIFICATION – conflicts are imputed to all members of the firm. 1. [CA] same disqualification rules, but no discipline for imputed conflicts. 2. Exceptions: Screening (can build “ethical wall”): conflicts arising from (1) previous govt service, (2) purely personal relationships, (3) atty’s work for adverse parties at previous firm 3. Remedies: (1) refuse to take the case, (2) advise Cs to get separate counsel, or (3) withdraw. IV. DOL: CONFLICTS B/N LAWYER AND CLIENT H. Business Transactions or Adverse Interests: May enter into business w/C or obtain an interest adverse to hers, ONLY IF (First Discuss Over Coffee): 1. FAIR: terms are fair to client 2. DISCLOSE: fully disclosed in understandable writing 3. OPPORTUNITY: client has opp to consult with Outside lawyer 4. CONSENT: client provides written consent 14. *CA: written disclosure I. Transactions: may receive interest in business (stocks) as payment if fair and reasonable under circumstances known to L when interest is acquired (interest must not influence L's future advice)

J. Board Service: strongly discouraged b/c may compromise loyalty and confidentiality. 1. But may serve on board of legal services organization if no knowing participation in decision/action adverse to L's C. K. Loans and Advances to Clients: 1. ABA: No financial assistance, except for (1) indigent's costs + litigation expenses or (2) ADVANCE of litigation expenses in contingent fee cases. 2. CA: No paying prospective C’s debts to gain his business, BUT allows loans to a C in all matters/for any purpose w/a written loan agreement (promissory note) L. Limiting Liability: 1. L may NOT limit C’s right to report ethical/professional violations 2. May limit malpractice liability if client independently represented in making the agreement 15. If client later files claim, can settle only w/showing of written advice to consult an outside atty first. 3. *CA: Bars malpractice limits M. Publication Rights Contracts: 1. ABA: not allowed before end of representation 2. CA: Case law discourages, but allowed if judge satisfied that C clearly understands and consent N. Use of Information: Use/communication of info relating to the representation of C w/out consent and to C's disadvantage violates duties of loyalty and confidentiality. O. Gifts to the Lawyer or Lawyer’s Family: 1. Can’t solicit substantial gift from client 2. Can’t draft a legal instrument for a non-relative client if provides substantial gift to L or L’s relative (wills: statutory undue influence) P. Close Relationship to Opposing L: 1. L cannot oppose a party represented by someone closely related to L w/o informed C consent. 16. ABA = immediate family (parent/child/sibling/spouse); *CA = immediate fam + “shackmates” 2. No imputation to firm. Q. Sex between L &C: ABA: no sex with your client, unless preexisting sexual relationship; *CA: sex ok, but no rape, coercion, or improper influence; organic R. Trial Counsel as a Necessary Witness: 1. CA: L can testify in ANY bench trial; L cannot testify in jury trial unless written consent by C. 2. ABA (more restrictive): L cannot serve as counsel and witness in the same trial UNLESS: (1) will not prejudice C (consent req.), and (2)

testimony uncontested OR re: nature and value of services rendered OR if L's distinctive value to the case would mean withdrawal, which would impose a substantial hardship on C. V. DOL: CONFLICTS BETWEEN CLIENTS S. APPROACH: 1. Analyze each client separately for all duties 2. When multiple clients, watch for confid probs T. Clients with POTENTIAL conflicts: may rep w/consent of all, if doesn’t disadvantage any (Two Cs with inconsistent positions; Multiple Cs in same matter; Criminal D's) 1. If actual conflict arises, must withdraw U. Clients with actual conflicts: may NOT represent one C (watch out for imputation) in any case adverse to another C. 1. Case adverse to present client’s interest: ABA allows if reasonable (but rare); CA has absolute prohibition 2. Statutory Exception: may rep policyholder and insurance company as joint clients, if insurer’s interest is only as indemnity provider. V. Duty to Former Cs: cannot take on new C w/interests materially adverse to former C, unless informed, written consent. (DoC, DoL) W. Imputed Disqualification 1. From Former Firm: 17. If atty leaves firm that previously represented C, prohibition remains via imputed conflict if: a. Matters are same/subst related; and b. Any remaining atty has confid material information. 18. Conflict’s won’t extend to new colleagues if: a. You are timely/effectively screened b. Receive no direct part of the fee; and c. Your former C receives notice; and d. Periodic certifications of compliance w/these conditions 2. Former Gov't L Now in Private Practice: firm gov't L joins is imputed, unless (1) ethical wall; (2) gov't L does not share in fee; (3) former gov't employer is informed. 19. ABA: If a gov't L worked personally and substantially on a “matter” (specific dispute b/n specific people over specific issues), then conflict to work on the same "matter" later in private practice, UNLESS the government employer gives written consent. 20. CA: prosecutor cannot later defend same case.

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Same rules apply to judge, clerk, arbitrator and mediator. VI. DOL: CONFLICTS DUE TO THIRD PARTY INTERFERENCE X. GR: Your sole duty is to your C and not to any TP. Y. Compensation from 3P only if: (1) Informed consent (CA – written); (2) no interference with L's indep professional judgment; and (3) no breach of DoC. Z. Organizational Clients: ("best interests" of ENTITY) 1. GR: A L must act in the best interest of the entity even if a D/O/employee acts to the contrary 2. SOx (Federal law): if materially violating securities laws, L: (1) MUST report up to CEO or GC; (2) if they do not respond, then MUST go to BoD or highest authority. 22. If BoD doesn’t respond, MAY disclose to SEC if atty believes is reasonably necessary to prevent fraud/subst injury to org or investors. OR, if atty’s services used in furtherance of fraud 3. ABA: Reporting up REQUIRED; reporting out ALLOWED 4. CA: Reporting up ALLOWED; reporting out PROHIBITED (But, Federal preemption of SOx) VII. FIDUCIARY RESPONSIBILITIES [TO CLIENT] AA. Attorney Fees: 1. Non-contingency cases: Agreement must include: 23. How fee calculated, 24. Services covered, 25. L&C's duties. 26. *CA: agreements be in Writing, unless: (a) <$1000, (b) corporate C, (c) routine services + regular C, or (d) impractical b/c emergency 2. Contingent cases: 27. Agreement Reqs: a. Written b. Signed by C; c. L's %, d. Expenses deducted from recovery e. Whether L% is before or after expenses. f. *CA: also include (1) how work not covered by the contingency fee will be paid, (2) % always negotiable, 28. When is contingency ok? a. ABA: no crim or divorce b. CA: Divorce okay if does not “promote dissolution” of otherwise savable marriage. 29. Termination Before Judgment : if/when client wins, atty entitled to proportion to work done

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Settlement Offers: “fair and reasonable” clause (else L withdrawal) is allowed 31. Fee Amount: a. ABA: reas in totality of circum b. CA: not unconscionably high 32. Billing hours to each client when represent 2 clients: *CA: only if: a. Fee charged to each not unconscionable b. L clearly disclosed the billing practice at the outset of the relationship; and c. Obtained client consent 3. Fee Disputes: 33. ABA: arbitration encouraged 34. CA: must arbitrate if C wants 4. Fee Splitting with: 35. Lawyers in firm: allowed. 36. Lawyers outside firm: only if (1) total fee meets ethical standards, and (2) written disclosure & consent. a. ABA: proportional to work done unless jointly responsible for action; prohibits referral fees b. CA: Referral fees ok if: (1) total fee isn’t increased, (2) fees aren’t unconscionable, (3) client consents 37. Non-lawyers not allowed, unless: (1) death benefits to deceased atty’s firm/heirs, (2) employee pension plans, (3) salaries to non-lawyer employees; or (4) share court-awarded fees w/non-profit org. 5. Partnership with Non-Lawyers in Providing Legal Services: non-lawyers cannot be partners, shareholders, officers, or control or direct a lawyer’s professional judgment. 38. Exception: Reciprocal Referral Arrangement w/non-L if not exclusive and explained to C. BB. Duty to Safeguard Client Property 1. Property: label + store in a safe place. 2. No borrowing or commingling ($ recv'd on C's behalf, advances for costs, expenses and fees): use client trust account (interest bearing or pooled (for small amounts held for short period of time)) 39. Normal acct: indiv interest-bearing trust acct 40. Pooled (IOLTA): smaller funds to be held in short period for several clients at once a. Checking acct b. Interest first to bank service charges, then to state bar to fund pro bono work 3. Disputed Claims: If L or 3P has a lawful claim over C's funds or property, MUST w/hold disputed portion until resolution of the claim. 4. Other Duties: keep good records; render accountings; notify & pay money due to C. CA: Requires records of C's property to be kept

for 5 years after final distribution and make records available to State Bar for audits. 5. Disclosure of Prof. Liability Insurance: 41. ABA: allows admin. Suspensions (but not discipline) for failure to report whether you carry insurance on annual registration 42. *CA: Don’t have insurance, must, at the time of engagement; disclose that fact in writing to any client needing more than 4 hrs. of work a. EXCEPTION: gov’t/in-house lawyers VIII. DUTY OF COMPETENCE & OTHER COMMON SENSE DUTIES [TO CLIENT] CC. Accepting Representation: 1. Generally free to accept/reject any case (L not bus) 2. MUST reject if would violate law/ethical rule to take 43. Duty of Competence: render competent service to C (if you’re not in shape to do it, or overbooked). 44. Duty of Candor (if case would require frivolous legal argument) 3. Appointments: Should accept appointment by tribunal to represent person unless good cause. 4. Pro Bono: Should accept cases of defensesless/ oppressed if your only reason to refuse is selfish 45. ABA: urges 50 hrs pro bono/yr DD. Duty of Competence: legal skill, knowledge, thoroughness, and preparation reasonably necessary for representation. 1. Unfamiliar areas: decline, unless (1) learn w/out undue expense or delay to C, or (2) associate w/other competent L. 2. Consequences: discipline, disqualification, malpractice (injured C brings suit to get compensation in civil court; C alleges you breached duty of care owed to C; negligence std.) EE. Duty of Diligence: diligently, promptly and zealously pursue C's case to completion. FF. Duty to Communicate: keep C informed about case (including settlement offers) and promptly comply with reasonable requests for information. 1. Settlement offer/multiple C’s: Must convey offer to all and be sure they agree on division of the settlement before accepting GG. Scope of Representation: C makes decisions affecting substantive rights. L makes decision on procedure and legal strategy. Can limit scope with consent. HH. Withdrawal: 1. Client can fire L at any time, w/o reason 2. Mandatory Withdrawal: if continued rep would violate law or ethical rule (physical/mental shape, assist w/crime, frivolous claim) or if C fires L

3. Permissive Withdrawal: MAY withdraw if can convince court there’s good cause, or if it is FAIR: 46. Financial burden a. CA: only if C breaches fee/expense K 47. Acts illegally a. ABA: L's services were used to commit past crime or fraud 48. Insists on pursuing objective atty finds “repugnant” or “imprudent”; 49. Refuses to fulfill an obligation 50. Court may deny withdrawal if undue delay or disruption. 4. Procedures for Withdrawal: (1) provide timely notice to client; and (2) promptly return any unspent fee, expense advances, and material papers and property, even work product (CA: forbids w/holding even if client has not paid). II. Duty to Client with Diminished Capacity: 1. ABA: maintain normal A/C relationship to extent possible; seek guardian; take reasonable necessary actions to protect C from substantial harm. 2. CA: may not seek guardian against C's wishes. IX. DUTY OF CANDOR TO THE COURT GENERAL RULE: L prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation (overrides all our duties to clients) JJ. Duty of Candor to the Court: L must not knowingly: (1) make or fail to correct a false statement of material law or fact; (2) fail to disclose directly adverse legal authority; or (3) offer false evidence. KK. Duty to Present Facts and Evid Truthfully (and to Correct Falsehoods) 1. Must not facilitate client perjury 51. If atty knows PRIOR to client taking stand: a. Civil Case L must reuse to call C as W if L knows C will lie b. Criminal Case: (∆ has Const rt to testify): i. Counsel C to testify truthfully or not take stand ii. Try to withdraw iii. ABA: tell judge iv. *CA: allow ∆ to testify in narrative form, but don’t further deception by facilitating or arguing points later 52. If atty finds out AFTER of perjury: a. Make reas remedial measures, but duties to ct end when proceedings end 53. If only reasonably believe testimony is false, rules are permissive

2. Witness testimony: must NOT counsel/assist W in testifying falsely or “bcome unavail” 54. May NOT put W you know will lie on stand (L’s discretion if just reas belief). 3. W Expenses/Fees: basic expenses/reasonable fees for expert witnesses allowed, so long as not contingent on content of testimony. 4. Ex parte proceedings: must inform tribunal of all material facts known to L that will enable tribunal to make a fair decision. (Also, duty of fairness to adversary). LL. Duty to State Law Truthfully 1. Must disclose directly adverse legal authority 2. Duty to file meritorious claims (non-frivolous legal or factual basis) (C/O Torts) 3. Remedy: discipline X. DUTY TO PRESERVE DIGNITY OF THE COURT MM. Duty to Preserve the Impartiality and Decorum of the Tribunal: Do not try and influence anybody improperly. Before and during trial L must not talk to any prospective or empanelled juror. 1. After trial over, may interview consenting jurors 55. *CA: Must tell jurors they can refuse an interview and have a copy of any resulting court declaration 2. No “chicanery” – no trickery by L: 56. Referring to inadmissible material 57. Alluding to matters unsupported by evidence 58. Asserting personal knowledge of facts at issue 3. No theatrics NN. Duty to Expedite Cases: 1. ABA: L has an affirmative duty to expedite cases. 2. *CA: must not delay cases to harass an adversary, or for L's own personal gain or convenience. OO. Duty to Follow Valid Procedural Rules and Court Orders unless making good faith challenge to their validity XI. DUTY OF FAIRNESS TO ADVERSARIES (3PS) PP. Duty of Fairness: L must act to promote public confidence in the integrity and efficiency of the legal system and profession (catch-all). QQ. Communications with Adversaries and 3P 1. No false statements of material fact or law – must not: 59. Lie/Mislead 3P as to L's interests 60. Violate 3P's legal rights to obtain evidence 61. Purposely delay, burden or embarrass 2. No communications with represented parties that L knows is represented, unless consent of counsel (doesn’t apply when C seeking 2nd opinion or authorized by law) 3. Organizational Clients (Corps): 62. *CA: consent of counsel needed to interview any ee whose communication

could bind/be imputed to org (officer, 70. Public office: name cannot be used for director, managing agent, etc.) "any substantial period" if L not practicing 4. No keeping of inadvertently sent documents – at firm. notify sender if L knows/should know 71. Multistate offices: consistent firm name inadvertent okay as long as jurisdictional limits are 63. Must no copy/destroy/disseminate or use it listed. to your advantage WW. Sale of Law Firm – ABA: okay; CA: may only RR. Duty to Produce Evidence: Must NOT destroy, sell all or substantially all of law practice. alter, suppress, conceal or otherwise obstruct 3P's XX. ADVERTISING & SOLICITATION - Duty of candor access to evidence, regardless of DoL (C/O and Duty to preserve the dignity of the profession Criminal Law) 1. Commercial Speech regulation: state can 1. Physical evidence: NOT considered CI regulate attorney advertising and solicitation if: 64. MUST hand over contraband given by C 72. Gov't substantial interest; (if reas certain is contraband, or if 73. Reg. directly advances interest; subpoena) 74. Narrowly tailored. 2. Communications re: physical evidence: IS 2. Advertising: must not be false or misleading confidential (can’t disclose) (no material omissions, unverifiable 65. CAN’T relay to police if C tells you where comparisons, or unjustified expectations) weapon is 75. Don’t mislead/omit material fact 3. No tampering with evidence: 76. Don’t raise unjustified expectations or 66. You can look but don’t touch! make unverifiable comparisons a. *CA: presumes improper any ad that 67. If only verifying location/existence  ok contains GWP; no SS. Prosecutor's Special Duties testimonials/endorsements may be 1. Basic duty = to seek justice, not win cases used unless express disclaimer that 2. Must timely disclose favorable evid to ∆, not a GWP regardless of admissibility or outcome 77. CA: no communications containing: 3. Must provide exculpatory evidence a. Guarantee of outcome 4. Must have probable cause b. Words/symbols suggesting quick TT. Duty to uphold the law cash 1. Assisting in Crime: cont’d rep would require c. Impersonations of L or C w/o you to commit or assis in committing a crim, disclosure (think testimonials) MUST withdraw (if C persists in crim acts but d. Dramatization of accident/event you are not assisting, you MAY withdraw w/out disclosure 2. Preventing C from committing crime: e. Contingent fee that doesn’t warn C 68. (See death/SBH disclosure rules under he must pay costs if loses DOC) 78. Specialization: can explain limitations in 69. (See financial loss under DOC) areas of practice; cannot advertise UU. Trial Publicity/Dealing w/Press – : L has duty specialization, unless: not to interfere w/D's right to fair trial . L may a. ABA: approved organization; respond to press and public's right to know. No outidentified in ad; of-court statements L/L’s agents reasonably know b. CA: cert'd by Bd. of Legal would have a substantial likelihood of materially Specialization (Exp., Exam, Educ., prejudicing the case. Eval.). 1. Exceptions: (1) Matters in the public record or 79. Advertising must not harass or solicit routine booking information, (2) Warning the someone who has indicated that she wants public, informing them of an ongoing to be left alone. investigation or asking for help, and (3) Right to 80. Ad Content requirements: Reply: statements to protect C from substantial a. Labeled as ad on envelope AND first undue prejudice from recent publicity not selfpage of ad; initiated. b. Identify responsible L; XII. DUTY CANDOR TO THE PUBLIC c. Retain content + placement info for VV. Running a Law Firm 2 years. 1. Law-related (ancillary) services: L may provide 3. Solicitation: no fee-paying work can be law-related services. If distinct from law initiated by personal or live telephone contact service, must warn C of no A/C Priv. If not w/a prospective C, unless there was a prior distinct, comply with ABA. personal, professional or family relationship. 2. Law Firm Name: no false/misleading letterhead 81. ABA: no real time electronic contact. 82. CA: reads “live or telephone” narrowly and would permit for chat room

solicitation. Rebuttable Presumption of False/Misleading if communication is made to potential C that L should know is not in physical or mental state to exercise reasonable judgment (hospital rooms, unlabeled ads, etc). 83. Runners and Cappers (agents): held to the same standards of lawyers. YY. Unauthorized Practice of Law – L must not engage in the unauthorized practice of law to protect public from incompetence. (1) Violates Jx regulations on legal profession; or (2) assisting in UPL. 1. ABA: temporary practice by L in good standing in another state is allowed if – (1) Associates with local L; (2) Pro hac vice; (3) ADR services; or (4) reasonably related to L's practice where admitted. 2. *CA: out-of-state Ls registered as legal svcs attys, registered in-house, or temporarily practicing in-state must – (1) register w/CA bar and pay dues; (2) satisfy continuing education requirements; and (3) be subject to CA ethics rules. XIII. DUTY TO PRESERVE THE DIGNITY OF THE PROFESSION ZZ. When there are no explicit rules, you must act to promote public confidence in the integrity and efficiency of the legal system and profession. AAA. Reporting Misconduct: 1. ABA: report if conduct raises substantial question as to that person’s honesty, trustworthiness, or fitness as lawyer or judge. 2. CA: Does not require external reporting; but can discipline L for knowing about a colleague’s disciplinary violation and doing nothing to prevent it. 84. CA requires self-reporting if: a. Charged with a felony or certain crimes b. Found civilly liable for fraud or breach of fiduciary duty c. Disciplined in another jurisdiction d. Sued for malpractice or sanctioned BBB. Duty of Supervising and Subordinate Lawyers 1. Supervising L: discipline if ratified the conduct or knew of conduct and filed to take action. 2. Subordinate L: discipline if clear violation; no discipline if at direction of supervising L and arguably ethical (supervising L will be liable) 3. Managing Partners: must make reasonable efforts to ensure that everyone’s (not just L) ethical conduct in a firm. CCC. Inaction – CA: can be disciplined for knowing about a fellow firm member’s disciplinary violation and doing nothing to prevent it.