Duty of Confidentiality - Southern California Institute of Law



Duty of Confidentiality

An attorney owes her client a duty of confidentiality. This means that lawyer cannot reveal any information relating to the representation of the client without client’s consent. The rationale is to further candor, trust and allowing the adversarial system to work. This duty applies regardless of whether the client requested it be kept confidential or whether its revelation might harm or embarrass the client.

- It attaches regardless of whether A/C relationship was formed or not i.e., online free advise: attaches

- This duty continuous indefinitely even if representation has ended

- The duty of Confidentiality applies regardless of whether the info is privileged or not, and regardless of whether atty/client privilege exist or not, and regardless of source or how the information was obtained

Exceptions

- Implied consent exists whereby as part of the representation a lawyer is required to disclose information in fulfillment of his duties

- Crimes: Fraud or Financial: CA has no exception to confidentiality for fraud or financial crimes and hence, under CA rule, lawyer must not reveal client’s info for fraud or financial crimes. Under ABA Model rule, a lawyer may reveal information relating to the representation of a client if he reasonably believes that disclosure is necessary to prevent fraud or mitigate substantial financial loss.

- Death or SBI: The ABA model rule and CA rules as of July 2004 permit a lawyer to reveal confidential information if the lawyer reasonably believes that disclosure is necessary to prevent death or SBI. Under CA rules, however, the lawyer must 1-first make a good faith effort to persuade the client not to commit the act and 2- inform the client of decision to reveal confidences unless such effort is futile under the circumstances.

- Dispute between Atty & Client: An attorney can disclose confidences necessary to establish a claim or a defense, i.e., Disciplinary action against lawyer, Refusal of payment; Suit for malpractice

- Seeking ethics opinion: Attorney may disclose when it is necessary to obtain confidential legal advice (=also implied consent as a part of representation to fulfill his duties).

- Compelled by law or other controlling ethical duties, or final court order and contempt

Attorney-Client Privilege

It is an evidentiary privilege, which allows a client to refuse to testify and prevent his L from testifying in court about confidential communications between the parties or their agents. Attorney-C privilege only shields the info obtained from the client or her agent while duty of confidentiality covers any information relating C.

- Corporate Client When an attorney represents a corporation, the A/C privilege extends to communications between the lawyer and any high-ranking corporate officials. (distinguish employee spoke in personal capacity or representative capacity)

Exceptions

- Joint Representation When two or more parties communicate together with L about a matter of common interest, attorney-client privilege does not apply between the parties if subsequently there is a lawsuit between the parties. However if the parties are sued by a 3rd party, the privilege remains intact.

- Future Crime or fraud: The privilege does not apply where the professional services were sough to further crime or fraud. Additionally, CA has an additional exception. In CA, the privilege does not apply where the lawyer reasonably believes disclosure is necessary to prevent death or SBI

- Disputes between A & E

Attorney’s Work Product

Materials prepared in anticipation of litigation are protected by work product doctrine and are qualifiedly immune from disclosure unless opponent shows 1) substantial need for the material and 2) an inability to gather the material without undue hardship. However, a lawyer’s metal impressions or opinions are absolutely immune from discovery.

Duty of Loyalty * (= to Avoid Conflict of interest – 3 kinds)

1) (First part of the rule) A lawyer owes her client a duty of loyalty. The rule is that if a concurrent interest of the attorney, another client, or a 3rd party materially limits or is adverse to loyal representation, there is potential or actual conflict of interest.

2) (2nd part): a client must not represent a client if to do so would adversely affect the interest of another client unless: 1) The attorney reasonably believes 2) that he can represent the parties effectively AND 3) the lawyer must informs each affected client 4) Obtain each client’s informed written consent. (However the conflict must in fact be consent-able.)

- Reasonable belief: it is an objective test and if a reasonable lawyer would not advise the client to consent, it is not consent-able

- Potential v. direct conflict If a lawyer’s duty of confidentiality to one client prevents him from fully disclosing information that another client needs to understand the conflict, the conflict is uncontestable.

- Potential conflict can be cured by the above steps, but direct conflict is not curable i.e., its not consentable

Imputed Disqualification

If a lawyer faces a conflict of interest, his conflict is imputed to all other lawyers in his firm and the firm would be disqualified from representing the client. In CA, the imputed disqualification applies to disqualify an attorney from appearing in a matter but it does not subject the lawyer to discipline for ethical rules.

Exception:

- Purely personal – when the conflict of the lawyer arises from a purely personal relationship that would not affect the ability of other firm members to represent the client.

- Ethical Wall – A lawyer may make a representation reasonable by blocking off any contact on the matter between the lawyer with the conflict and other lawyers of his firm (still apply reasonable test)

- Prior Government Employment the rationale is to ensure that parties have a right to work in the public service without the fear of disqualifications.

Remedies available to the Lawyer

1) Refuse to take the case; 2) Advise multiple clients to get separate counsels; 3) Withdrawal

Conflict btwn Lawyer & Client

Business Transaction w/ C

A lawyer cannot enter into a business transaction or obtain an interest adverse to her client unless 1) the terms are fair to the client 2) the terms are fully disclosed in understandable writing 3) Client has an opportunity to consult outside counsel 4) client provides written consent

Serving of the BOD a client bus

(50% maybe) R: There is no automatic bar to serve on the BOD of firm’s client, but serving as BOD is strongly discouraged since it is likely to compromise 1-duty of loyalty, as well as 2-duty of confidentiality

Publication rights contracts

CA rules recognizes that publication rights during the proceeding creates a serious conflict of interest and discourages a lawyer from obtaining publication rights during the proceedings, but CA generally tolerates them if 1- client clearly understands the conflict and 2-consents in writing. Under ABA rule, a lawyer may not obtain publication rights from his client relating to the representation until the judicial proceeding has ended.

Loans and Advances to Client

CA Rule prohibits a lawyer from “buying” a potential client with a promise to pay client’s debts, but allows loans in all matters (including non litigation matters) for any purpose after the lawyer is hired if there is a written promise to repay the loan

ABA Rule is stricter and prohibits a lawyer from providing financial assistance to client except for 1) “Cost & litigation expenses” when representing an indigent, and 2) contingency fee agreement (i.e., the advance of “expenses” if client promises to pay back (re-payment contingent on the recovery is Okay.

Limiting Liability– Settling claim

A lawyer cannot prospectively limit client’s right to report ethical violation. Similarly a lawyer cannot prospectively limit her liability for malpractice unless the client is independently represented in making that agreement.

- Also, if a client later makes a claim against the lawyer, the lawyer may not settle the claim with 1-an un-represented client unless the lawyer 2-first advise her 3-in writing 4-to consult with an outside counsel and 5-give her a reasonable chance to do so

Use of Client’s information

Use of information relating to the representation of a client to her disadvantage violates lawyer’s both duty of confidentiality and loyalty

- even mere use violates both duties

Gift to the lawyer or his family

A lawyer may not solicit a substantial gift from a client, or draft a legal instrument for a client who is not her close relative if it provides a substantial gift to the lawyer or her relative.

Close Relationship with other Lawyer (=lawyers related)

Close relationship with other lawyers in the same matter creates potential conflicts, hence the lawyers must obtain informed written consent of the clients before they can represent the clients. CA extends this conflict to include three additional relationships: 1-living together, 2-intimate relationship, and when 3- one lawyer is a client of the other lawyer

- No Imputed Disqualification: The conflict that arises when lawyers are related to one another is not imputed to their respective law firms.

Trial Counsel as Witness – lawyer as necessary witness

CA prohibits a lawyer from testifying in a jury trail unless the client consents in writing. The ABA rule is more restrictive. Under ABA, a lawyer cannot serve as both trial counsel and witness in the same trial unless 1) lawyer’s appearance will not prejudice the client and the testimony relates solely to an uncontested matter, or nature and value of services rendered, OR 2) Lawyer’s distinctive value to the case would cause undue hardship if the lawyer were to withdraw

Sex btwn Lawyer and Client (only on Fridays lol –don’t!)

A lawyer must not have a sexual relationship with a client (both ABA & CA rule 3-120). This rule does not apply if the lawyer and client had a consensual sexual relationship before they became lawyer and client. Even if there was a pre-existing consensual sexual relationship, the lawyer should make sure that his ability to represent the client will not be affected by the relationship. Similarly, a lawyer who represents an organization must not have a sexual relationship with a constituent of the organization with supervises the lawyer’s work or consults the lawyer about the organization’s legal matter. A conflict causes by a sexual relationship is not imputed to other lawyers in the lawyer’s firm.

Proprietary Interest in the Cause of Action or Subject matter of Litigation:

A lawyer may not acquire proprietary “interest” in the client’s cause of action or the subject of litigation, except as to 1-line on the property, or 2-a reasonable contingent fee

Conflicts among Clients

Generally, a lawyer may represent clients with potential conflicts with the reasonable consent of all, but it is almost never proper if their interests are in actual conflict

- Crucial analysis for conflicts among clients is to analysis “do the representations overlap in: 1-Function, subject matter of representation, 2-Scope, 3-Informaiton – specially look for breach of confidentiality in multiple clients cases

Opposite Sides of the Same Matter (actual conflict)

When parties are in opposite sides, their interest is in direct conflict and it is never reasonable to assert a claim against another client.

Opposite side in different matters

CA rules absolutely prohibit a lawyer from taking a case that is adverse to a current client’s interest even if there is no relationship between the two cases

Under ABA rule, consent of the parties opposed to each other, even in unrelated cases, is rarely reasonable and court will likely not allow such representation.

- Even if the cases are totally unrelated, in CA you cannot oppose your present client) (i.e., your firm represent X in a breach of contract case against Y. You cannot take W’s case against X for DV)

- Exception: By statute CA does not extend this prohibition to representing a policy holder and his insurance company as joint clients where the insurers interest in each matter is only as an indemnity provider (insurance as indemnity provider, you do not need its consent and you can represent them)

2 Clients with inconsistent Positions

A lawyer can take on inconsistent positions for separate clients arguing both sides (i.e., for and against constitutionality of a §) but both clients must consent to the representation and if any of the clients would be disadvantaged withdrawal is required

Representing Multiple Clients in the Same Matter

A lawyer may take on multiple representation or act as an intermediary between the parties if the lawyer: (when potential conflict, curable by:) 1) Reasonably believes that he can represent all of the parties effectively; 2) Disclose all potential conflicts to all clients; 3) obtains written consent from all clients 4) and that court finds the agreement to be reasonable

( EXAM TIP: common fact pattern triggering this issue involve

1-insured and insurance company,

2-employee and company as co-(,

3-both spouses in a prenuptial agreement, divorce, or a will

4-atty acting as intermediary

- Point out it is potential conflict (the 4 steps cures the conflict), and then watch out it might ripen into a direct conflict (which is not curable)

i.e., Dr. Al’s insurance company has hired lawyer L to defend Al and the insurance company in a malpractice action. this is issue of representing multiple clients in the same matter. this presents potential conflict, but is acceptable with reasonable consent (4 step above) here, potential conflict arose, and is curable by the 4 step above

-Now, assume, Dr. Al tells L that he was using medically “unorthodox practices” on the patient ( that are not covered by his malpractice insurance policy. What result? Now there is actual conflict. There is direct conflict over coverage and conflict is not consent-able.

( The conflict is between confidential information that L has from Al, which he cannot use in pursuing undivided loyal representation of the insurance company (conflict over coverage).

Remedy: L must withdraw and advise to obtain separate counsel. Here, the lawyer must at least withdraw from representing the insurance company b/c L has relevant, confidential information from Al that she cannot use in pursuing undivided loyal representation of the insurance company (in this fact pattern, the representation overleaps in scope and information)

Crim Pro C/O: dual representation in criminal cases may not only compromise lawyer’s duty of loyalty, but also may impede the 6th amendment’s guarantee of “effective assistance of counsel.” (it is also absolute prohibition against multiple representation even if court attempts to appoint the counsel)

Opposing Former Client

(i.e., new client vs former client)

If the confidential information of a former client might be relevant to a new client’s matter, a lawyer may be violating her continuing duty of confidentiality as well as her duty of loyalty to her former client and thus she may not take on the new client with an interest materially adverse to the former client without the former client’s written consent.

When a Lawyer leaves a firm

When a lawyer leaves a firm, imputed disqualification applies and bars the former firm from representing the new client if 1) the matter is the same or substantially related, AND 2) if any remaining lawyer has material confidential information of former representation

Former Government lawyer in private practice

CA does not have a specific rule regarding former government lawyers, (except that prosecutors are barred from later working on defense side of the case), as such, CA applies the general principals of conflict of interest.

The special ABA rule states that if a government lawyer worked “personally and substantially” on a “matter” (i.e., a specific dispute between specific people over specific issues), then the lawyer may not work on the same “matter” later in private practice.

Imputed disqualification on colleagues of former gov atty

Other members of the firm can work on the issue if these are met: 1) Screening (Former gov lawyer must be screened off); 2) No Sharing in fee (Former gov lawyer must not share fees in the matter, but salary or partnership shares established by prior independent agreement are OK, and 3) Government employer is informed of the screening. (no need their consent: just notify)

Conflicts due to 3rd Party Interference

The general rule is that a lawyer’s duty runs solely to his/her client and not to any 3rd party

Compensation by 3rd party

Compensation for lawyer’s service from a third party is permitted only if the client is 1-informed of the arrangement and 2-consents 3-bearing in mind that lawyer’s sole duty runs to client

- the third party must not interfere with Lawyer’s exercise of judgment for the interest of client

Organizational Clients (Corporate lawyer)

The lawyer must act in the best interest of the entity even if such would be contrary to the interest of officer, employee, or other official’s interest

- Lawyer Duty to a Corp (i.e., in house counsels or Lawyer for the Corp) – a lawyer employed to represent an organization represents the organization itself and must act in the best interest of the organization entity and not any particular officer, employee, or other person associated with the organization. If a lawyer feels fraud or illegal activity is taking place (also under Security laws), Lawyer must report the matter to CEO or chief legal counsel of the company. If they do not respond, lawyer must go to the BOD or highest authority in the company (audit committee or etc). Finally, if the lawyer reasonably believes that it is necessary to prevent fraud or substantial injury to the organization or investors (or L’s services were uses), Lawyer may disclose without client’s consent confidential information to an external entities (such as SEC). On the other hand, Under CA rule, CA specifies permissive, not mandatory, reporting to a higher internal authority and would prohibit any outside publication. However, Pre-emption by federal law applies and a CA lawyer cannot be held civilly liable or subject to discipline for action under this federal law

Fiduciary Duty

Attorney Fees

- Non-Contingent Fee

In non-contingent fee cases, CA rules and ABA rules require that the agreement include: 1-how the fees are calculated; 2-what services are covered, 3-the lawyer and client’s duties. CA rules further require that that the agreement must be in writing unless 1) the fee is under $1000, or 2) it is with a corporate client or 3) it is for routine services for a regular client, or 4) it is an emergency or impractical

- Contingency Agreements:

In contingency fee agreements, the agreement must 1. be in writing, 2-signed by the client and 3-contain: 1) Lawyer’s percentage 2) What expenses will be deducted from the recovery, and 3) Whether lawyer’s percentage is taken before or after the expenses are deducted. CA rules further require that the agreement specify: 4) how work that is not covered by the contingency fee will be paid, and 5) that lawyers’ fees are negotiable, not some “standard” percent of recovery.

- Type of actions allowing contingent fees:

According to ABA, contingent fees may not be used in 1-criminal, and 2-domestic cases. * CA, however, is silent on criminal matters and allows contingent fee agreements in divorce case if it does not promote or encourage the breakup of an otherwise savable marriage. Additionally, contingency fee must be reasonable and not unreasonably high –issue of reasonable fee, next!

- Termination before judgment awarded: When a lawyer is hired on contingency basis and later discharged, the lawyer can recover only if and when clients recovers, and lawyer’s recovery is based on reasonable value of services rendered (Quantum Meruit)

- Amount - too high?

Under CA rule, fees must not be unconscionably high. (negatively worded sentence) Under ABA rule, fees must be reasonable taking into account (Lands re-experience demand) 1-Labor, 2-Novelty, 3-Difficulty, 4-Skill and timing required, 5-Result obtained, 6-Experience of lawyer7-Demands on the attorney, 8-fee arrangement

- CA requires Arbitration: CA lawyer is required to arbitration if the client so desires. The ABA encourages arbitration, if available, to resolve fee disputes.

Fee splitting

- It is generally allowed to split fees with lawyer in the same firm.

- Fee Splitting w outsider lawyer

A lawyer can split fees with outside lawyer only if: 1) the total fee meets ethical standard (:reasonable $), and 2) there is a written disclosure stating the share each lawyer is to receive, and 3) must be singed by client; 4) additionally ABA requires that the division be proportional to the work done by each attorney, unless each is jointly responsible for the action 5) CA does not require proportionality

- Referral Fees (i.e., gift, $, anything)

Under CA rules, a Lawyer may pay referral fee if 1) the client is informed & consents in writing & 2) the total fee is: neither unconscionable, nor increased due of referral fee. Under ABA, referral fees are NOT allowed.

- Fee Splitting with non-lawyer

Fee splitting with non-lawyers is prohibited in both CA and under ABA rules. The rationale is to protect the lawyer’s judgment and prevent the unauthorized practice of law by non-lawyers. Exceptions: to the general rule: 1) lawyer’s death benefit with his firm or heirs; 2) fees shared with a non-lawyer employees via pension and compensation plan; 3) a lawyer may share court-awarded legal fees with a (NPO) non profit organization that employed, retained, or recommended lawyer in the matter

- Partnership with non-lawyer in providing legal service

Partnership with a non-lawyer in providing legal services is prohibited for any practicing lawyer. Non-lawyers cannot be partners, shareholders, officers, or control or direct a lawyer’s professional judgment. (This rule applies to legal activity: legal line of work)

- Reciprocal Referral arrangement

A lawyer can enter into a reciprocal referral arrangement with other lawyers or non-lawyer professional, provided: 1) it is not exclusive 2) the lawyer explained the arrangement to the client at the time of referral

- Lawyer providing legal and non-legal service

If the non-legal services are provided by a separate entity controlled by the lawyer, the lawyer must take reasonable measure to assure the client knows the protections of a attorney-client privilege do not apply to the non-legal services.

Client’s $ & Property

- Client’s Property: a lawyer has a duty to safeguard her client’s property by labeling and storing it in a safe place such as office safe, bank safe deposit box.

- Client Trust Account: Money held for the client must be placed in a (C T/A) Client Trust Account. These include moneys received 1-on client’s behalf, and 2-advances for cost, expenses and fees. A lawyer is strictly prohibited from borrowing or commingling of C T/A with his personal money.

- L may use either of the following account: 1-Individual Client Account – use an individual interest-bearing trust account to hold client’s funds and interest belongs to c, or 2- Pooled Trust Account are those accounts that can be used to hold smaller funds for a short period of time for several clients at once. This must be a checking account, and the interest (IOLTA) will first go to pay the bank’s service charges, and the remainder must be given to The State Bar to fund legal service for indigents

- Dispute with Client – if a lawyer has a disputed claim for fees or if a 3rd party has a lawful claim over client’s fund or property, the lawyer must withhold the disputed portion in the client trust account until resolution of the claim

- Additionally Record Keeping: a lawyer has a duty to: 1) keep accurate records for his client, and 2) to render accountings, 3) notify him of moneys received on his behalf, and 4) pay promptly money due to him; 5) Additionally, CA requires a lawyer 1-to keep records of client’s property for 5 years, and 2-to make records available to the State Bar for audits upon demand.

Lawyer’s conduct Not relating to practice of law: A Lawyer has a duty to behave honestly in all dealing whether or not engaged in practice of law. Lawyers conduct in their private business or personal capacities are also bound by professional standards of conduct and can be disciplined for conduct violating such standard. (the rule is that a lawyer has a duty to behave ethically at all time in all dealings whether or not engaged in the practice of law ) Dignity and decorum (: good manner, good behavior, politeness, respectably)

Duty of Competency

A lawyer has a duty to render competent service to his/her client. If she doesn’t, she is subject to 1-disciplien by the Bar, 2-disqualifaction as counsel in a litigated matter, and 3-civil malpractice liability. Competence means using the 1-Legal knowledge, 2-Skill, 3-Thoroughness, & 4-Preparation reasonably necessary for the representation of a client. The rule is that if a lawyer does not know the relevant law, she cannot take the case unless 1) the lawyer can put in the time to learn it without undue expense or delay to client, or 2) the lawyer associates with a lawyer competent in that area of law

- Being overbooked or not being in physical or mental shape and taking the case are also violation of duty of competence to client. duty of competency requires lawyer to exercise independent professional judgment and render candid service (must have legal knowledge, skills, thoroughness and preparation reasonably necessary for representation of that case)

- An ethical violation is a “relevant evidence” of malpractice, but it is not conclusive and does not create a presumption of negligence

Duty of Zealous Representation (Duty of Diligence) A lawyer also has a duty to diligently, promptly, and zealously represent and pursues the case to the completion

Duty to Communicate

A lawyer has a duty to keep her client informed about the case, including settlement offers & returning calls

- if a settlement offer is made to joint clients, the lawyer must convey the offer to all and make sure they agree on the division of the settlement before accepting the offer – and returning phone calls and emails

Accepting Representation

A lawyer is free to accept or to reject any case. However, a lawyer should accept, as part of her duty to the public and profession: 1) the defenseless, oppressed or unpopular cases “if her reason to refuse is merit-less or selfish”, and 2) a fair share of pro bono work. ABA rules urge 50 hours of pro bono work a year for truly indigent clients

Duty to Reject a Case

A lawyer must reject to take a case if: (mandatory) 1) she would violate a law, or ethical rule, or 2) has no time to competently handle the case

i.e., L is overbooked, or L is not in the physical or mental shape to take the case: violating duty of competence to client)

if the case would require making a frivolous legal argument which would violate the duty of candor to the court

Scope of Representation

The client makes decisions about her substantive rights (such as whether to testify in a criminal case, waive jury trial, enter a plea, or in a civil case accepting a settlement offer) and the lawyer makes decisions on procedure & legal strategy (such as what discovery to seek or motion to file.)

- Limiting Scope of Representation

If the lawyer disagrees with client’s course of action (for any reason), the lawyer can limit the scope of representation when 1- the limitation is reasonable and 2-clients give informed consent.

- Client’s illegal act

A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. The lawyer should explain that a client’s course of conduct is illegal and must not recommend illegal conduct or advise the client how to act illegally and get away with it. If the client insists on illegal or unethical assistance, the lawyer must withdraw.

- “The lawyer must advise her about her 5th Amendment right against self-incrimination, but that she must testify truthfully if she takes the stand. By doing so, the lawyer fulfills her duties of 1-competence (knowing relevant law), 2-candor (to the court), 3-fairnss (to the other party). But The final decision to testify or not belong to the client. if the client insists that she is going to testifying falsely, the lawyer must withdraw (can’t disclose her fraud b/c would violate L’s duty of confidentiality and since it is not SBI, there is no CA exception)

- Examiners in this question wanted to see that you state these: 5th amend, duty of competence, candor, fairness, AND: final decision to testify or not belongs to Client

Mandatory Withdrawal

A lawyer must withdraw from a pending case if continuing would 1-violate a law or 2-ethical rule.

- L must WD if: 1) he is not competent (physically or emotionally to handle a case), or 2) continuing would assist furthering a criminal act, or 3) it would violate any rules of ethics, or 4) if client’s case is merit-less or frivolous (violating duty of candor to court and duty of fairness to adversary)

Permissive Withdrawal

A lawyer may withdraw from a case if 1-the court is convinced that there is good cause, or 2-if it’s FAIR under ABA rule because there is:

1. Unreasonable Financially burden on the lawyer

- Under CA rules, financial burden is not a valid ground for permissible withdrawal; but, if the client does not pay, client’s breach of promise to pay expenses or fees is a valid ground for permissible withdrawal. (Breach of contract to pay the fees is valid ground for permissive W/D)

2. Client Acts illegally, or has used lawyer’s service to commit a past crime or fraud

- In CA, use of lawyer’s service to commit a past crime is not a valid ground for permissive withdrawal

3. Client insists on pursuing an objective that lawyer find “repugnant” or “imprudent”

any other disagreements between client and atty

4. Client Refuses to fulfill an obligation to lawyer after lawyer has warned him that he would withdraw if he did not comply

- However, notwithstanding the general rule, the court may deny the lawyer’s request to withdraw / or client’s request to substitute his lawyer, if 1-it would cause undue delay or 2-disruption

- Procedures for Withdrawal

In order to quit (either permissive or mandatory), the lawyer must provide 1) timely notice to the client, and 2) must promptly return: any unspent fee and expense advances & all papers, file and property of the client. this includes every thing needed to pursue the case, even work product, and even if the client has not paid. CA forbids withholding of client’s materials for money.

Advertisement

-Constitutional issue? A state can regulate attorney’s advertising and solicitation subject to lawyer’s constitutional right to free speech. This is protected under limited commercial speech doctrine of 1st amendment. Under this doctrine, government regulation is upheld if: 1) it serves a Substantial gov interest (i.e., protecting citizens, or dignity of profession), and 2) the restriction Directly advances that interest 3) it is Narrowly tailored to meet that interest

Advertising

Advertising refers to lawyer’s communication with public at large or a segment of the public. The rule is that advertising must not be false or misleading or omit material information. Also, the ad must not raise unjustifiable expectation or make unverifiable comparison. California presumes improper any ad that contains guarantees, warranties, or predictions of a result

- Customer’s testimony: R: No testimonial or endorsements may be used unless there is an express disclaimer that they are not guarantees, warranties or predication of an individual result)

- Omission of material information, or truth of facts & “add on” is misleading.

- Ad must not improperly claim specialties: A lawyer can explain her filed of practice (such as “practice limited to federal courts”), but may not advertise claims of specialization unless lawyer is a certified specialist that is earned a certificate from either 1-the CA Board of Legal Specialization, or 2-A private organization that is approved by the ABA or identified organization that is approved by state.

- Ad must not improperly claim partnership, affiliation or knowledge of Gov entity

- Ad must not Harass or solicit someone who has indicated that she wants to be left alone. Targeted direct mail is allowed.

Labeling - Requirement for Advertisement (LIK: Label, Identify, Keep record): Every ad must be labeled as “Advertising Material” and, if applicable, “a dramatization” or “impersonation.” It must identify at least one lawyer responsible for its content and Lawyer must keep records of the content and placement of any ad for 2 years. Additionally CA Rule 1-400 lists additional specific actions which presumes to be advertising violation, and shift the burden to the lawyer to disprove a violation

Solicitation

Solicitation refers to individualized live contact with a layperson, initiated by the lawyer or her agent to entice the person to hire the lawyer. The rule is that a lawyer cannot seek professional employment for pecuniary gain by initiating a live or telephone contact with a prospective client with whom the lawyer has no previous professional, personal, or family relationship.

- CA does not extend solicitation to real time electronic contact while ABA extends solicitation to include those contacts. Thus, computer, chat room, text messaging etc are not solicitation under CA rule, but they are solicitation under ABA

- Recent victims: CA presumes that communications made at the scene of an accident or en route to a medical facility or to a client in a time of physical or mental stress are improper. The rationale is that the lawyer should know that such person are not in the physical or mental state to exercise rational judgment

- This will also violate L’s duty to uphold the dignity of the profession and fairness to others

- Agents of a lawyer cannot do anything that a lawyer cannot do.

- Payment, or referral fees: Anything of value for referrals are not allowed, except for: 1- fee splitting with other lawyers under CA rules if it meets the requirements 2- ordinary fees paid to authorized lawyer referral service

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** Doubt ( If the lawyer has a reasonable belief, but some doubt, as to the falsity of Wit’s testimony, the rule is permissive, and lawyer may refuse to offer that evidence except for testimony of D in criminal cases.

** If lawyer finds out later of lies:

If the lawyer only after the witness has testified discovers that she has offered false evidence, the lawyer must take reasonable remedial measure to correct the false evidence or the lies by going through the above steps

Duty of Candor to the Court

(and fairness to parties)

A lawyer is prohibited from engaging in a conduct involving dishonesty, fraud, decide or misrepresentation. This ethical duty to court overrides conflicting duties of loyalty to client and preserving his confidences

Duty to Present Fact & Evidence Truthfully

The rule is that a lawyer must refuse to make a false statement, or offer evidence that the lawyer knows is false or misleading, or fail to correct a false statement of material fact or law that was previously made to the tribunal.

- Client Perjury Situation

A lawyer must not knowingly facilitate client perjury.

- When the matter is a civil case, the lawyer must refuse to call the client as a witness if the lawyer knows that he intends to perjure himself or present false evidence. (L must refuse to allow W to take the stand in civil cases).

- in criminal cases, ( has a 5th Amd right to testify on his own behalf, and a 6th Amd right to effective assistance of counsel, which in turn conflicts with lawyer’s duty of confidentiality. In such situations, L must take reasonable remedial measure by:

1. First counseling the client to testify truthfully or not to take the stand. If persuasion fails:

2. Lawyer may try to Withdraw from the case (permissive W/D when client wants to act illegally and doesn’t follow your advice)

3. if that fails, there is a split among jurisdiction as to Lawyer remedial measure:

- under CA rules, lawyer must allow the defendant to testify in a narrative fashion but do nothing to further the deception. (e.g., cannot facilitate the testimony with questions; only narrative; cannot repeat those statements on closing or argue those point to jury) (in CA, L cannot disclose C’s perjury). Under ABA Rule, lawyer must tell the judge (lawyer is allowed to disclose client’s confidences – “there is no constitutional protection for perjury)

- Witnesses Perjury Situation

A L must refuse to allow a W to testify falsely (must refuse to put Wit on stand) or to become “unavailable” to testify. Also, unless local law prohibits, a lawyer may pay basic expenses of a witness (i.e., travel, meals, hotel, job etc) and reasonable fees for expert witness, so long as the payment is not contingent on the content of the testimony.

Duty not to Conceal Evidence

Lawyer must not later, destroy, tamper or conceal evidence or obstruct other party’s assess to fruit or instrumentality of a crime. Additionally, it is a crime to destroy or conceal evidence.

- Separate physical evidence from communications and analysis the separately: Communications are confidential info and cannot be disclosed VS. Physical evidence, pre-existing documents, smoking gun, etc: lawyer must turn them to authorities

Duty to turn over physical evidence to authorities

L has a legal obligation to turn physical evidence to authorities. Failure to do so may be construed as obstructing the justice.

- Interference W/ Evidence Situations? If lawyer’s investigator retrieve the gun and examines it, must she then give it to the police? Yes. May she also be compelled to testify where she found it? Yes, because a lawyer or his agent may be compelled to testify as to the original location or condition of the evidence that he moved or altered. May the lawyer reveal the source of information about its location? No, that’s confidential.

Duties in Ex-parte Proceedings

Ex-parte proceedings are unusual communications with the judge outside the presence of the adversary. Lawyer’s ethical duty of candor to the court and fairness to adversary requires him to reveal relevant information which overrides the general presumption that lawyer should not volunteer facts harmful to client’s case

Duty to state the law truthfully

Knowingly making a false statement of law to the court is subject to discipline.

Duty to disclose adverse authority

A lawyer has an obligation to be candid about the law, and a duty to cite to adverse authority if 1-it’s from a controlling jurisdiction, and 2-its directly on point.

Presenting frivolous claim or defense is unethical and subjects the lawyer to disciplinary action (also there is a sanction by court under FRCP 11)

Duty to uphold the law (and keep up with its change)

Boiler plate add on: add this and get extra point: A lawyer must also act to promote public confidence in the integrity and efficiency of the legal system and the profession.

Duties of Fairness

- Communication with adversaries and 3rd Parties: A lawyer 1-must not make false statement to others or mislead them as to his interests. Also, 2-A lawyer must not violate the legal rights of a person in order to obtain evidence or 3-use means with no purpose but to delay, burden or embarrass

- Communication with Unrepresented person: When a person does not have counsel of his own, a lawyer representing a client may communicate with the person directly. However, when dealing with the unrepresented person, the lawyer must 1-not state or imply that she is disinterested, 2-clear up misunderstandings about her role in the matter, and 3-not give her any advice other than to obtain counsel when client’s interests is adverse to those of the unrepressed person

- Return documents sent inadvertently: If a lawyer receives a document relating to the representation of a client and knows or should know that the document was sent inadvertently, the lawyer must promptly notify the sender so that the sender can take protective measure.

- Avoiding contact with Juror:

A lawyer must not 1-seek to influence a judge, juror, prospective juror, or other official or 2-communicate ex parte with such a person except as permitted by law or court, or 3-enage in conduct intended to disrupt a tribunal (ex parte triggers candor to court & fairness to adversary)

- Communication with a party represented by counsel: The rule is that a lawyer must not communicate with a party that the lawyer knows is represented by counsel in the matter unless the person’s counsel has granted permission, or he is otherwise authorized by law or court order to make the communication. This rule applies even if represented person initiated that communication

- Corporate entity or Organization: a lawyer must obtain consent of organization’s counsel before communicating or interviewing 1) Officers, directors or managing agent 2) or any current employees whose communication might bind or be imputed to the organization or constitute an admission

- Low level employees: i.e., line worker or label employee: no consent of atty is needed to interview low level employees

- Trial Publicity & Press the defendant’s right to a fair trial is balanced against the press and public’s right to know. The general rule is that a lawyer or his agent must avoid out of court statements that the lawyer knows or should know that it will have a substantial likelihood of materially prejudicing the case (BZ: adverse affect).

However, exceptions:

1. matters in the public record or routine booking info

2. warning to the public, and informing the pubic of an ongoing investigation or asking for help, and

3. statements required to protect the client from substantial undue prejudice from recent publicity not self initiated

4. additionally, prosecutors must not make comments that have a substantial likelihood of heightening public condemnation of accused

- Special duties of Prosecutors The basic duty of a prosecutor is to seek justice, not just to win cases. Prosecutors have higher ethical obligation than criminal defense or civil lawyers.

- Among other duties, prosecutor must 1) have probable cause 2) protect the accuser’s rights, including not subpoenaing a lawyer to present evidence against the a client (unless 1-the info is not privileged, 2-the evidence is essential, and that 3-there is no feasible alternative) 3) timely disclose evidence favorable to the defense, (exculpatory material) and 4) exercise reasonable care to prevent associates from making pretrial publicities that have substantial likelihood of prejudicing the case

- Lawyer’s conduct Not relating to practice of law: A Lawyer has a duty to behave honestly in all dealing whether or not engaged in practice of law. Lawyers conduct in their private business or personal capacities are also bound by professional standards of conduct and can be disciplined for conduct violating such standard. (the rule is that a lawyer has a duty to behave ethically at all time in all dealings whether or not engaged in the practice of law ) Dignity and decorum (: good manner, good behavior, politeness, respectably)

Duty to Preserve the Impartiality and decorum of the tribunal (it runs to court, also implicates dignity to the profession): A lawyer must refrain from abusive, disruptive or obstreperous (=hostile, bad temper) conduct, belligerence (=anger, violence), or theatrics (=theater, show business). The CA rules state “a lawyer may stand firm against abuse by a judge but should avoid reciprocation”

- No “chicanery”: A lawyer must not engage in trickery with the tribunal such as referring to inadmissible evidence, matters unsupported by evidence, or asserting personal knowledge of facts at issue (chicanery: trickery conduct specially by lawyers or politicians)

- a lawyer must not influence anybody improperly. Before and during trial, a lawyer must not talk to any prospective or empaneled juror. After the trial is over, if the local law permit, a lawyer may interview jurors so long as the juror is not harassed or influenced in their future jury service.

Duty to Expedite Cases

CA rule states that lawyers must not delay cases to harass an adversary, or for their own personal gain or convenience. Under ABA rules Lawyers have an affirmative duty to expedite cases.

- a lawyer has a duty to follow valid procedural rules or court order, unless the lawyer the lawyer is making a good faith challenge to their validity. Lawyer must not abuse or obstruct discovery

Conduct in private matters: A lawyer may be disciplined for violation of professional standard even when acting in private capacity. (a L must not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, including in their private business or personal capacity i.e., not paying child support makes atty’ license suspended

Reporting Misconduct – self-reporting

The general ABA rules require a lawyer to report any other lawyer or judge’s violation of the rules if it raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer or judge. CA does not require this, but instead requires self reporting of the lawyer’s being charged with 1) a felony; 2) found civilly liable for fraud; 3) breach of fiduciary duty; 4) disciplined in another jurisdiction, or under certain condition sued for malpractice and other difficulties

Additional Duties of the Profession and Public

- Out of State Practice Multi State Practice – “Pro Hac Vice Admission” A lawyer must not engage in the unauthorized or unlicensed practice of law. Practices in a state while suspended or in which the lawyer is not admitted is a violation of ethical rules unless allowed by law, a Pro Hac Vice order by the local court, or under limited exceptions.

- * In 2004, CA adopted more narrow rules of court governing out of sate lawyers in the categories of: 1) Registered Legal Service Attorney (practicing under supervision of a CA attorney for no more than 3 years) 2) Registered in-House Counsel for an institution 3) Litigating and Non-litigating Attorneys Practicing Temporarily in the state 4) These rules generally require the lawyer to register with the CA Bar, pay dues, and satisfy continuing legal education requirement and be subject to CA ethics rules

- ABA rules is less restrictive and allow temporary and limited practice by a lawyer in good standing in another state if 1-the lawyer associated with a locally admitted lawyer who actively participates in the matter, or 2) the services relates to ADR (alternative dispute resolution) or the matter arises out of matters reasonably related to the lawyer’s home state practice and are not services where the forum require pro hoc vice appearance

Duties of Subordinate Lawyers

- Subordinate lawyer: If a lawyer is under the control and supervision of another attorney (e.g., a senior partner), who orders him or ratifies a conduct that is a clear violation of ethical rule, both the senior partner as well as the subordinate lawyer are subject to discipline, but if it is a debatable problem, only the senior partner is responsible

- Also, a supervising partner who ratified or knew of the conduct and failed to take reasonable remedial action, is liable.

- Inaction: In CA, if a member of a firm commits a disciplinary violation, other members of the firm can be disciplined if they approved it, or knew about it and did nothing to prevent it. In other word, in CA a lawyer can be disciplined for inaction if he knew about another lawyer’s ethical violation in his firm and did nothing to prevent it. (Inaction is actionable in CA)

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