Legal Ethics Outline I. Attorney-Client Privilege a.

Prohibits a court from compelling the revelation of confidential communications between an attorney and a client i. Only the client as the holder of the privilege may waive the privilege ii. !hen the client is a corporation the privilege e"tends to communications between the lawyer and a high-ran#ing corporate official $. %his means that the entity can waive the privilege as to confidential communications made between the lawyer and the entity&s officers'directors re(uiring the lawyer to testify about these confidential communications unless the lawyer also represents the officer'director in an individual capacity and the confidential communications were made with the officer'director in an individual capacity )because then the individual holds the privilege* b. E"ceptions to the Privilege i. +nder the A,A -ules and California rules the privilege does not apply if the client see#s the attorney&s services to enable or aid anyone to commit any future crime or fraud )duty of confidentiality still applies here though* ii. Also in California the privilege is inapplicable if the attorney reasonably believes that the disclosure of confidence is necessary to prevent the client from committing a future crime that is li#ely to result in substantial bodily harm or death .uty of Confidentiality )owed to client* a. Prohibits the attorney from revealing any confidential information relating to the representation of the client )e.g. statements made by the client/ observations made by the attorney regarding the client/ statements from third parties relating to the client* i. E"ceptions0 $. Consent of the client after consultation a. Attorney also has implied consent to reveal what is necessary to render his legal services i. E"ample0 1our client has synthesi2ed a new steroid and has hired you to get a patent on the drug. 1ou may reveal the client&s invention to the Patent Office because it is necessary to render your legal services. 3. Crimes a. A,A -ule i. Attorney may reveal confidential information about a client if he reasonably believes disclosure is necessary to prevent a future crime involving substantial bodily harm or death b. California

II.

III.

i. %here is no clear ethical e"ception to disclose confidential information even for imminent substantial bodily in4ury or death but the California evidence code overrides the attorney-client privilege to prevent substantial bodily harm 5. .efending 1ourself a. Attorney may disclose confidential information about a client if necessary to establish a personal claim or defense i. E"amples0 $. %he client sues attorney for malpractice/ 3. %he client brings disciplinary actions against the attorney/ and'or 5. %he client refuses to pay the attorney forcing him to sue the client for fees 6. Attorney may disclose confidential information if compelled by law other controlling ethical duties or a final court order b. 7cope of the .uty i. 7ource of the information does not matter ii. 8Anything related to the representation of a client9 is construed very broadly and can include business or political conse(uences )isn&t limited to information directly related to legal services* iii. Ethical standard is broader than the evidentiary attorney-client privilege and can apply whether or not the information is privileged c. .uty applies regardless of whether client as#s it to remain confidential or whether its revelation might harm or embarrass the client. d. .uty continues indefinitely even after representation has ended .uty of Loyalty )owed to client* a. If a concurrent interest of the attorney another client or a third party materially limits or is directly adverse to loyal representation the attorney has a potential or an actual conflict of interest i. Attorney may not ta#e on the representation unless0 $. :e reasonably believes he can represent everyone effectively/ 3. :e informs each affected client/ a. If the duty of confidentiality prevents full disclosure no consent is possible 5. Client consents in writing/ and 6. %he consent is reasonable a. If a reasonable lawyer would not advise a client to consent then the consent is invalid ii. If conflicts emerge only after representation begins the attorney must disclose potential and actual conflicts as they arise must get further consent and must withdraw if consent is not reasonable b. Imputed .is(ualification i. Attorney and all the members of his current firm are treated as a unit for the purpose of conflicts )this includes any group of lawyers that wor#

together closely or share responsibilities* )e.g. private firms government agency offices corporate law offices* $. E"ceptions0 a. !hen the conflict arises from previous government services b. !hen the conflict of the lawyer arises from a purely personal interest or relationship that would not affect the ability of other firm members to represent the client i. In these cases an 8ethical wall9 may ma#e representation reasonable by bloc#ing off any contact on the matter between the lawyer with the conflict and other lawyers in the firm ii. Imputed dis(ualification only applies to an attorney&s former firm )that former firm cannot ta#e on a matter* if0 $. %he matters are substantially related or the same/ and 3. Any remaining lawyer has confidential material information c. -emedies i. -efuse to ta#e the case ii. Advise multiple clients to get separate counsel iii. !ithdraw d. ;ost Common Conflicts i. Conflicts ,etween Lawyer&s Interest and Client&s Interest $. A lawyer must not have a proprietary )economic* interest in the cause of action or sub4ect matter of the litigation a. E"ception0 i. An attorney may get a lien on property to secure payment of fees/ and ii. An attorney may wor# on a contingent fee basis if permitted for the type of case involved )e.g. contracting for a percentage of the damages awarded or settlement received* 3. A lawyer should not become interested in the sub4ect matter of the litigation )e.g. proprietary interests* a. E"ceptions0 i. An attorney&s lien on property to secure payment of fees ii. An attorney can wor# on a contingent fee basis 5. ,usiness %ransactions or Adverse Interests0 a. Attorney may enter into business with client or obtain an interest adverse to the client only if0 i. %erms are fair to the client/ ii. <ully disclosed in an understandable writing/ iii. %he client has an opportunity to consult an outside lawyer/ and iv. %he client provides written consent

b. An attorney representing a company can agree to accept 8payment9 in the form of shares of stoc# e(ual to the value of the legal services performed if0 i. %he services have been valued reasonably/ ii. %he transaction is documented/ iii. It is fair and reasonable under the circumstances #nown to the lawyer at the time the interest was ac(uired/ and iv. %he interest doesn&t distort the lawyer&s advice to the company c. Attorney 7erving as .irector of a Corporation i. %here is no automatic prohibition against an attorney serving as a director of a corporate client but it is strongly discouraged )li#ely to compromise attorney-client privilege and confidentiality as well as create conflicts of interest* ii. An attorney may serve as a director officer or member of a legal services organization that is not the attorney&s employer as long as the attorney doesn&t #nowingly participate in a decision or action of the organi2ation that is adverse to the attorney&s clients 6. Publication -ights Contracts a. +nder A,A -ule i. Attorney may not enter into a contract for the rights to tell the story of a client until representation has ended b. California -ule i. .iscourages publication rights contracts before the end of the proceedings but tolerates them if the 4udge is satisfied that the client clearly understands and consents =. Loans and Advances to the Client a. A,A Code and ;odel -ules i. A lawyer is prohibited from rendering financial assistance to the client in the conte"t of contemplated or pending litigation $. E"ceptions0 a. Attorney may advance court costs and litigation e"penses )and repayment can be contingent on the outcome*/ and b. Attorney representing an indigent client can pay court costs and e"penses of litigation on behalf of the client

b. California -ule i. Attorney cannot promise to pay a client&s debts to gain his business )cannot 8buy9 clients* ii. After the lawyer is hired he may lend the client money for any purpose as long as the client gives him a written promise to repay the loan >. Limiting Liability for ;alpractice a. Attorney cannot prospectively limit his malpractice liability when he enters into a relationship with his client )or condition returning a client&s case file upon termination or withdrawal on the client signing a liability release form* b. An attorney can only settle a malpractice claim after giving written advice to the client to consult an outside lawyer first ?. +se of Information a. +se or communication of information relating to the representation of a client to her disadvantage ordinarily violates the duties of both loyalty and confidentiality @. Aifts to the Lawyer )or Lawyer&s <amily* a. A,A -ule0 i. Attorney may not solicit a substantial gift from a client ii. A legal instrument that gives an attorney )or his family* a substantial gift cannot be drafted by the attorney unless the client is the attorneys relative iii. Attorney may accept a gift from a client though as long as it meets general standards of fairness b. California only prohibits soliciting a gift not drafting the legal instrument B. Close -elationships with Other Lawyers in the 7ame ;atter a. A,A -ule0 i. Close relations with other lawyers in the same matter can create potential conflicts $. 8Close relations9 a. Includes immediate family )i.e. spouse parent child or sibling* b. California e"tends this rule to any intimate relationship )e.g. your own lawyer or client your roommate etc.* $C. %rial Counsel as a Decessary !itness a. Attorney cannot serve as counsel and witness in the same trial i. E"ceptions0 $. If the lawyer&s appearance as a witness will not pre4udice the client/ and the testimony is uncontested or regarding the nature and value of services rendered 3. Additional A,A E"ception

a. If the attorney has distinctive value in the case and withdrawal would impose substantial hardship on the client 5. Additional California E"ceptions0 a. If the testimony is to be given to anyone but a 4ury/ or b. If the client consents in writing ii. Conflicts Among Clients $. Aenerally attorney may represent two clients with potential conflicts with the reasonable consent of each client but it is almost never proper if their interests are in actual conflict 3. Opposite 7ides of the 7ame ;atter a. It is never reasonable to assert a claim by one client against another client in the same case )if parties are in direct conflict* i. E"ample0 Attorney&s firm represents %e"aco in labor matters. !hen an employee of %e"aco as#s attorney to represent him in a suit against %e"aco for cutting off his benefits the attorney cannot ta#e the case )imputed dis(ualification* because the parties are in direct conflict and it would be unreasonable 5. Opposing Present Client In a 7imultaneously Pending ;atter a. A,A -ule i. If attorney )or his firm* represents a company in one area )e.g. securities litigation* he probably may not represent an opposing party even if the case is in an unrelated matter )e.g. labor dispute*. $. %his is because even if the attorney secures the consent of each party the consent will li#ely be found to be unreasonable b. California i. Absolutely prohibits a lawyer from ta#ing a case against a client he is currently representing in another matter even if there is no substantial relationship between the two cases 6. %wo Clients !ith Inconsistent Positions a. A lawyer may argue both for and against a certain cause or law in two different cases as long as he receives the consent of both clients i. Attorney must withdraw if either client would be disadvantaged =. Eoint -epresentation of ;ultiple Clients in the 7ame ;atter a. Criminal ;atters

i. .ual representation is never allowed if attorney is appointed counsel ii. .ual representation in all other situations is permissible as long as it doesn&t impede the 6th Amendments guarantee of effective assistance of counsel $. A lawyer has provided ineffective assistance of counsel )and was incompetent* if her conduct falls measurably below the performance ordinarily e"pected of lawyers and her conduct affected the outcome of the trial b. -e(uirements )civil matters and criminal cases* i. An attorney may represent two clients in civil litigation if their interests are only potentially in conflict provided that the attorney0 $. -easonably believes he can represent all of them effectively/ 3. .iscloses potential conflicts and disadvantages to each client/ 5. Aets written consent from each client a. Consent can be inferred from the terms of an insurance policy calling for the insurer to retain counsel to defend the insured against malpractice actions/ and 6. Consent is reasonable ii. If a potential conflict becomes a present, actual conflict )e.g. insurer wants to settle doctor wants a trial to prove his innocence/ one defendant can plea bargain if he testifies against the other defendant* the attorney cannot continue to represent both parties. $. %he attorney should advise both parties about the conflict advise one or both of them to get separate counsel withdraw or continue to represent one party )e.g. the party you have obtained confidential information about* but withdraw from the other client )e.g. that would be hurt by that confidential information*. a. Also once an actual conflict becomes evident the attorney should refrain from sharing each party&s confidential information with the other party

iii. E"amples0 -epresenting both the insured and the insurance company )e.g. Insurance company hires attorney to represent the company and a doctor in a malpractice action* an employee and the company as co-defendants in civil litigation or both spouses in a prenuptial agreement divorce or will. iv. DO%E0 If a malpractice insurance policy gives the insurer the right 8to investigate and settle any claims as it deems appropriate 9 this creates a potential conflict in itself because it places the insurer in a superior bargaining position and pre4udices the doctor&s right to go to trial with fair representation >. Dew Clients In ;atters -elated to <ormer Clients )or a Dew Client 7ues a <ormer Client* a. An attorney owes a continuing duty to preserve information gained in confidence during a former representation of a client b. If the attorney obtained any confidential information during his representation of the former client that is relevant to the new client&s case the attorney may not ta#e on the representation of the new client unless both parties consent )in California written consent is re(uired* i. If the former client will not give consent the attorney must withdraw from representing the new client c. %he attorney may not ta#e on the new client&s case if the matter is the same or substantially the same as the former client&s matter )as# if the representations overlap in function scope or information* ?. <ormer Aovernment Lawyer Law Cler# Eudge or Arbitrator Dow In Private Practice a. A,A -ule i. If the attorney himself wor#ed personally and substantially on a matter while in government practice )i.e. a specific dispute between specific people over specific issues* the attorney cannot wor# on that same matter later in private practice unless the government agency consents in writing $. -egulations are not a 8matter9 )so you can wor# on regulations in a government office and then move to private practice and become involved in litigation disputing the meaning of those regulations* ii. Other members of the attorney&s firm may represent a client in the same matter if0

$. %he former government attorney is screened off/ 3. %he former government attorney does not share in any part of the fee in the matter a. :e can receive salary or partnership shares established by prior independent agreement however/ and 5. %he government employer is notified b. California is silent on this )has not adopted A,A -ule* iii. Conflicts .ue to %hird Party Interference $. Accepting <ees from a %hird Party )someone other than the client* a. Attorney&s sole duty is to his client not to any third party b. An attorney may only accept compensation for legal services from a third party if0 i. %he client consents after consultation/ ii. %he third party does not interfere with the lawyer&s independent 4udgment or the representation/ and iii. %he arrangement does not compromise the client&s confidential information 3. Organi2ational Clients a. !hen a lawyer represents a corporation'entity the lawyer owes his duties to the entity and must act in the best interest of the entity not its officers or employers i. In dealing with the organi2ations& officers and employees the lawyer must e"plain the identity of the client when the lawyer #nows or should #now that the organi2ation&s interests are adverse to those of the officers'employees ii. If the lawyer meets with an employee'officer of the entity in his individual capacity and it is clear that the individual is see#ing legal advice is meeting with the lawyer in his capacity as an attorney and engages in confidential communications with the attorney the lawyer will have entered into an attorney-client relationship with the individual officer'employee too )and all confidentiality rules apply to the officer or employee as well* $. %his is permissible sub4ect to loyalty'conflict of interest rules and disclosure'consent re(uirements b. If a lawyer for an entity #nows that an officer or employee is engaged in action intends to act or refuses to act in a matter related to the representation that is a violation of a legal obligation to the organi2ation or a violation of a law that could be imputed to the organi2ation and is li#ely to

IF.

result in substantial in4ury to the entity the lawyer must proceed as is reasonably necessary in the best interests of the entity i. As# for reconsideration of the matter/ ii. Advise that separate legal opinion be sought on the matter/ iii. -efer the matter to a higher authority within the entity including if warranted by the seriousness of the matter the highest authority that can act on behalf of the organi2ation $. !hen the organi2ation&s highest authority insists on action that is a clear violation of law and is li#ely to result in substantial in4ury to the organi2ation the lawyer may withdraw. c. If the attorney cannot proceed in the best interests of the entity because he cannot reveal a client-officer&s or clientemployee&s confidential information to the entity he must withdraw from representing the entity Attorney&s <iduciary .uties Owed to the Client a. Attorney <ees i. <ee agreements are typically contractual between the attorney and the client and should reached early and clearly ii. Don-Contingent <ee Cases $. A,A -ule a. <ee agreements should include0 i. :ow the fee is calculated/ ii. !hat services are covered/ and iii. %he lawyer&s and client&s duties 3. California -ule a. <ee agreements should include how the fee is calculated what services are covered and the lawyer&s and client&s duties and also must be in writing unless0 i. %he fee is under G$CCC/ ii. It is with a corporate client/ iii. It is for routine services for a regular client/ or iv. It is an emergency or impractical iii. Contingency <ee Agreements $. !hen %hey ;ay ,e +sed a. A,A -ule i. Contingency fee agreements may be used in every type of action e"cept for family law )divorce* and criminal matters b. California i. California is silent on criminal matters )so they are probably o#*

ii. Contingency fee agreements are allowed for divorces provided the fee arrangement doesn&t encourage divorce 3. -e(uirements0 a. ;ust be in a signed writing/ b. ;ust contain0 i. :ow the fee is calculated )the attorney&s percent*/ and ii. :ow costs will be handled )what e"penses are to be deducted from the recovery and whether the percentage is ta#en before or after e"penses are deducted* c. California also re(uires them to contain0 i. :ow the client will be charged for other related legal wor#/ and ii. A statement that the attorney&s fees are not set by law )are negotiable* iv. Amount of <ees $. A,A -ule a. <ees must be reasonable )ta#ing into account labor novelty difficulty s#ill and timing re(uired result obtained lawyer&s e"perience other demands on the attorney the fee arrangement etc.* b. Arbitration should be used to resolve fee disputes if possible 3. California -ule a. <ees must not be unconscionably high b. %he court will not enforce a contract containing unconscionably high fees c. Lawyer must agree to submit to arbitration if the client desires 5. Charging an additional fee or percentage of the settlement'damages awarded in addition to an already contracted for and owed fee as a condition to continue performing legal services is unreasonable'unconscionable v. <ee 7plitting )sharing part of your recovery'settlement with someone else* $. A lawyer may split fees with other lawyers in his firm 3. A lawyer may split fees with lawyers outside the firm if0 a. %he total fee amount meets ethical standards/ b. %here is written disclosure to the client/ and c. %he client consents d. A,A also re(uires that the division is proportional to the actual wor# done by each attorney unless each attorney is 4ointly responsible for the action )California does not re(uire proportionality*

5. -eferral <ees )where the primary attorney pays a portion of his fee to a second attorney who referred the client to him* a. A,A rules do not allow referral fees b. California allows referral fees as long as i. %he client #nows all of the terms and consents in writing/ ii. %he total fee is not unconscionable/ and iii. %he total fee is not increased because of the referral fee 6. A lawyer may not split fees with a non-lawyer a. E"ceptions0 i. .eath benefits for a lawyer&s services can be paid to the deceased lawyer&s firm or heirs for a reasonable time ii. <ees can be shared with non-lawyer employees via pension and compensation plans iii. Lawyer may share court-awarded legal fees with a non-profit organi2ation that employed retained or recommended the lawyer in the matter vi. Partnership with Don-Lawyers in Providing Legal 7ervices $. A lawyer cannot enter into a partnership with a non-lawyer to provide legal services )non-lawyers cannot be partners shareholders or officers and cannot control or direct a lawyer&s professional 4udgment* a. :owever a lawyer can enter into a reciprocal referral arrangement )not for fees* with another lawyer or nonlawyer professional provided that0 i. It is not an e"clusive arrangement/ and ii. %he attorney e"plains the arrangement to the client at the time of the referral b. Client %rust Accounts i. Attorney has a duty to safeguard his client&s property by labeling it and storing it in a safe place such as an office safe or ban# safe deposit bo" ii. ;oney held for the client )including moneys received on the client&s behalf and advances for fees costs and e"penses* must be placed in a client trust account $. Attorney may not borrow or commingle client&s funds with the attorney&s money )money cannot touch* 3. Attorney may not steal money from their clients 5. An individual interest-bearing trust account should be used to hold client funds )and the interest belongs to the client* a. E"ception0 8Pooled %rusts Accounts9 i. An attorney can hold smaller funds for several clients at once as long as it0 $. Is for a short period of time/

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3. %he money is contained in a chec#ing account/ and 5. %he interest goes first to pay the ban#&s service charges and the remainder goes to the California 7tate ,ar to fund legal services for the poor iii. If there is a disputed claim for fees or if a third party has a lawful claim over a client&s funds or property in the attorney&s custody the attorney may withhold the disputed portion in the client trust account until resolution of the claim iv. .uties -elated to Client %rust Accounts0 $. Heep good records for the client/ 3. -ender accountings/ 5. Dotify the client of moneys received on his behalf/ and 6. Promptly pay money owed to the client =. California also re(uires0 a. %he attorney to #eep records of client property for five years after final distribution/ and b. ;a#e these records available to the 7tate ,ar for audits Competence I Other Common 7ense .uties Owed to the Client a. .uty of Competence i. Attorney has a duty to render competent service to his client. $. 8Competence9 a. %he legal #nowledge s#ill thoroughness and preparation reasonably necessary for the representation ii. <ailure to render competent service can sub4ect the attorney to0 $. .iscipline by the ,ar/ 3. .is(ualification as counsel in a litigated matter/ and'or 5. Civil malpractice liability iii. If an attorney does not #now the relevant law he cannot ta#e on a matter unless0 $. :e can put in the time to learn it without undue e"pense or delay to the client/ or 3. :e can associate with a lawyer competent in the area iv. It violates the duty of competence to ta#e a case when not in the physical or mental shape to ta#e it )including 4ust being overboo#ed* v. ;alpractice .istinguished from Lac# of Competence $. ;alpractice action is brought by an in4ured plaintiff )not by the 7tate ,ar as in duty of competence cases* to get compensation )not for punishment or protection of the public as in competence cases* in a civil court )not a disciplinary tribunal as in competence cases* 3. An ethical violation may be relevant evidence of malpractice it does not create a presumption of malpractice 5. A malpractice claimant must prove a legal claim such as breach of contract negligence or breach of fiduciary duties.

a. If negligence is claimed the plaintiff must prove a breach of the duty of care owed by the attorney )the s#ill care and 4udgment that a reasonably prudent practitioner would have used under the circumstances/ or the s#ill care and 4udgment that a reasonably prudent speciali2ed practitioner would have used if the attorney held herself out as a specialist* b. Accepting -epresentation i. An attorney is free to accept or re4ect any case ii. An attorney should accept as part of his duty to the public and the profession0 $. %he case of the defenseless or oppressed 8if the only reason to refuse is selfish9/ and 3. A fair share of pro bono wor# each year )=C hours of pro bono wor# for truly indigent clients is urged by the A,A* iii. An attorney must re4ect a case if he would violate a law or disciplinary rule in ta#ing it c. 7cope of -epresentation i. %he client ma#es the ultimate decisions about her substantive rights )e.g. whether to testify in a criminal case waive a 4ury trial enter a plea plead guilty or accept a settlement offer* )and must therefore always be presented with any offers to plea or settle* $. If a client as#s about illegal conduct the lawyer can and should e"plain that the conduct is illegal but must not recommend illegal conduct or advise the client how to act illegally and get away with it ii. %he lawyer ma#es decisions on procedure and legal strategy )e.g. what discovery to see# or what motions to file* iii. If the lawyer and client disagree attorney can limit the scope of representation with client consent. d. .uty to Communicate i. Attorney has a duty to #eep his client informed about the case and any substantial developments in the litigation )including any settlement offers* $. %his includes any settlement offers and returning phone calls a. If a settlement offer is made to 4oint clients the attorney should consult each client prior to entering into negotiations and must convey the offer to each client and ma#e sure they agree on the division of the settlement before accepting the settlement 3. Communication regarding the case made by the attorney&s secretary or letting one client to a case act as another client&s interpreter is inade(uate to fulfill this duty to the client. Lawyer has an obligation to personally communicate with his clients about the case )or at least provide a neutral interpreter* e. .uty of .iligence

i. Attorney must act on behalf of his client with reasonable diligence and promptness and must see the matter through to completion $. A lawyer should not ma#e a fee agreement with a client that could result in curtailing services in the middle of the relationship f. .uties on !ithdrawal from -epresentation i. An attorney may enter into an agreement with his client that he will withdraw if the client refuses a settlement offer ii. A client cannot be penali2ed for firing an attorney )attorney cannot charge a fee as a penalty or forfeiture* iii. %hree ways an attorney might leave a case before the matter is resolved $. Client <ires Attorney a. If there is a contingency fee agreement attorney may recover fees for wor# already completed )under (uantum meruit* if and when the former client wins. 3. ;andatory !ithdrawal a. An attorney must withdraw from a pending case if0 i. -epresentation would violate a law or ethical rule )e.g. if continuing would re(uire assisting in a crime/ if attorney&s physical or mental shape renders him incompetent/ if attorney would have to pursue a frivolous claim*/ ii. %he lawyer&s physical or mental condition materially impairs the lawyer&s ability to represent the client/ or iii. %he lawyer is fired 5. Permissive !ithdrawal a. A,A -ules i. A lawyer may withdraw from representation of a client for any reason )e.g. refusal to pay fees* if it can be done without material harm to the client )loo#ing at how far the case has progressed/ whether a substitute attorney could ade(uately represent the client/ and how many legal services the attorney has already provided* ii. A lawyer may also withdraw from representation )but may not reveal confidential information* if0 $. %he client persists in a course of action involving the lawyer&s services that the lawyer reasonably believes is criminal or fraudulent/ 3. %he client has used the lawyer&s services )or his firm&s services* to perpetrate a past crime or fraud/ a. Attorney may ma#e a 8noisy withdrawal9 if he needs to disavow any documents opinions etc. that

5. 6.

=.

>.

further a continuing crime )but this does not allow revealing client confidences* %he client insists upon ta#ing action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement/ %he client fails substantially to fulfill an obligation to the lawyer regarding the lawyer&s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled/ %he representation will result in an unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the client/ or Other good cause for withdrawal e"ists

b. California i. A lawyer may not withdrawal0 $. ;erely because withdrawal will not have a materially adverse effect on the client/ 3. If the client has used the lawyer&s )or his firm&s* services to commit a past crime or fraud/ or 5. If representation will result in an unreasonable financial burden on the lawyer c. %he court may deny the attorney&s withdrawal and attorney must continue in the representation notwithstanding good cause for terminating the representation iv. Procedure for !ithdrawal $. Attorney must provide client with0 a. %imely reasonable notice prior to terminating legal services/ b. Any unspent fee and e"pense advances/ and c. %he client&s papers and property )including wor# product* 3. Attorney must return all unspent fees papers and property even if the client has not yet paid the attorney )California forbids withholding a client&s materials for attorney&s fees* g. Other .uties i. Attorney must be reasonable and sensible ii. 7e"ual -elations with Clients $. California -ule 5-$3C )fill in from class notes* a. A member of the ,ar shall not0 i. -e(uire or demand se"ual relations with a client incident to or as a condition of employment ii. :ave se"ual relations with a client

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$. E"ception0 !here the two had a consensual se"ual relationship before they became lawyer and client )lawyer should still ma#e sure his ability to represent the client will not be affected* .uties of Candor to the Public I .ignity of the Profession0 Advertising I 7olicitation a. %raditional professional ethics rules banned attorney advertising but the 7upreme Court has held that lawyer advertising is commercial speech protected by the <irst and <ourteenth Amendments and a state may regulate lawyer advertising but may not flatly prohibit it unless it is false or misleading b. Advertising )lawyer&s communication with the public at large or a segment of the public* i. Aenerally )A,A and California* $. Advertising and communications must be true and not misleading 3. Every advertisement must include the name and office address of at least one lawyer or firm that is responsible for its content 5. Payments for -ecommending a Lawyer&s 7ervices a. Lawyer may not give anything of value to a person for recommending the lawyer&s services i. %his does not include paying the reasonable cost of advertising or paying the usual fee charge by a legal service plan or (ualified lawyer referral service ii. %his does not include fee splitting under California rules ii. Additional California -estrictions $. Lawyer advertisements may not contain0 a. A guarantee or warranty of the outcome of a case/ b. !ords or symbols that suggest (uic# cash or a (uic# settlement/ c. An impersonation of a lawyer without disclosing that it is an impersonation/ d. A dramati2ation of an accident or event without disclosing that it is a dramati2ation/ and e. A contingent fee offer that does not warn that a client who loses a case must still pay litigation costs if that is the arrangement 3. California rebuttably presumes these specific actions to be false or misleading unless the lawyer can prove otherwise0 a. Communications delivered or made in person to a potential client who is in the hospital or who is suffering physical or mental stress )e.g. sending flowers to an accident victim*/ b. ;ailings )or even flowers sent* that see# fee-paying wor# and that are not clearly labeled as advertising material/ and c. Communications containing testimonials or endorsements without a disclaimer that the testimonials or endorsements

FII.

are not a promise about the results in the potential client&s case iii. Claims of legal specialties $. An attorney may e"plain his fields of practice )e.g. 8practice limited to federal courts9* but he can only claim speciali2ation if0 a. :e is a patent attorney/ b. :e is an admiralty attorney/ c. :e has earned a certificate in a specific legal sub4ect issued by the California ,oard of Legal 7peciali2ation/ or d. :e has earned a certificate from a private organi2ation that is either approved by the A,A or identified clearly as an organi2ation not approved by the 7tate iv. Claiming Partnerships or Affiliations $. Attorneys may not improperly claim partnerships or affiliations 3. In California it is a presumed violation of ethics rules for an attorney to state or imply that he is affiliated with or has a relationship with a government agency or non-profit. v. Attorney must #eep records of the content and placement of any advertisements for two years c. 7olicitation )individuali2ed contact with a lay person initiated by the lawyer or her agent that is designed to entice him to hire the lawyer* i. Attorney cannot see# professional employment for pecuniary gain by initiating a live )face to face* telephone or real-time electronic contact with a prospective client who is not a lawyer and with whom the attorney has had no prior professional personal or family relationship $. Lawyer will not be sub4ect to discipline for soliciting pro bono free services ii. -unners and cappers )agents* cannot do anything that a lawyer cannot do iii. %argeted .irect-;ail 7olicitations $. Absent actual #nowledge that the prospective client does not wish to receive communications from the attorney the attorney may send truthful non-deceptive letters to persons #nown to face a specific legal problem 3. %he first page of the letter and the envelope must be labeled as 8advertising materials9 )recorded communications must begin and end with an announcement* iv. Aroup and Prepaid Legal 7ervice Plans $. A lawyer may participate in a group or prepaid legal service plan even though the plan uses personal contacts and live telephone contacts to offer the plan to persons who are not #nown to need legal services 3. A lawyer member may personally contact a group that might wish to adopt a legal service plan for its members .uty of Candor to the Court I <airness to 1our Adversary a. A lawyer is prohibited from engaging in conduct involving dishonesty fraud deceit or misrepresentation

i. %his duty generally even overrides conflicting duties of loyalty and preservation of confidences b. .uty to 7tate the Law %ruthfully i. Hnowingly ma#ing a false statement of law to the court is sub4ect to discipline ii. Attorney has a duty to be candid about the law and a duty to cite to adverse authority if0 $. It is from a controlling 4urisdiction/ and 3. It is directly on point iii. Presenting frivolous claims or defenses is unethical and is sub4ect to disciplinary action c. .uty to Present <acts and Evidence %ruthfully i. An attorney may not0 $. ;a#e a false statement of material fact to a court/ 3. Offer evidence he #nows to be false to a tribunal/ or 5. <ail to correct a false statement of material fact or law that he previously made or presented to the court ii. Attorney may not counsel or assist a witness to testify falsely or to become 8unavailable9 to testify iii. Attorney may pay a witness for0 $. %ravel/ 3. ;eals/ 5. Lodging/ 6. %ime lost from a 4ob/ and =. -easonable fees for e"pert witnesses so long as the fee is not contingent on the content of the testimony iv. Lying !itnesses $. If an attorney knows that a witness will lie in their testimony he cannot put that witness on the stand )rule is permissive if the attorney only has a reasonable belief that the witness will lie or there is some doubt* v. Clients !ho Commit Per4ury $. An attorney cannot knowingly facilitate client per4ury. a. In civil cases the attorney can refuse to allow the client to testify b. In criminal cases the attorney who knows for certain his client has or is about to lie on the stand must0 i. Counsel the client to testify truthfully not ta#e the stand or recant his false testimony/ ii. If that fails0 $. A,A0 the attorney must attempt to withdraw from the case 3. California0 the attorney may attempt to withdraw )permissive* iii. If withdrawal fails0

$. A,A0 %he 4udge must be told )because the right to counsel and the duty of confidentiality do not shield per4ury* 3. California0 %he client may testify in a 8narrative9 fashion but the attorney may not do anything that furthers the deception )e.g. as# (uestions/ argue points to the 4ury* iv. A lawyer for a defendant in a criminal case is not sub4ect to discipline for putting the prosecution to its burdens and re(uiring every element of the case to be proven beyond a reasonable doubt )e.g. even if the lawyer #nows that there is incriminating evidence against his client and his client might be guilty he can still argue to the 4ury that the prosecution failed to prove identity )or some other element* and that the 4ury should believe the defense witness& testimony* c. %he obligation to correct per4ury ends with the completion of the proceedings d. .uty to Produce Evidence i. Attorney cannot knowingly and unlawfully alter destroy falsify or conceal'hide evidence or counsel his client to do so $. E"ample0 If attorney does not #now that a client&s ring is the same ring as recorded on a burglary surveillance tape but doesn&t want the client to wear it for fear that it might create an implication that he is guilty the attorney may counsel the client to remove the ring/ however if the attorney counsels the client to remove the ring with the intention to hide evidence the attorney can be sub4ect to discipline ii. If an attorney is reasonably certain that something given to him by the client and in his possession is a fruit or instrumentality of a crime he must turn it over to the authorities )e.g. police .A* in a reasonable time )e.g. can do tests or authenticate it first* $. %his is true even if the fruit or instrumentality is cash paid to the attorney for legal services 3. Attorney may not disclose where he received the item or what was said to him by the client about the fruit or instrumentality )duty of confidentiality* iii. Lawyer learns about the location of real evidence from an attorney-client privileged communication but does not take possession $. Do turn over duty 3. Do disclosure duty iv. Lawyer learns about the location of real evidence through an attorneyclient privileged communication and then removes the evidence from its original location or alters it $. %urn over duty

FIII.

3. ;ust disclose the original location and condition of the evidence v. Lawyer takes possession of an item from a third party $. %urn over duty 3. .isclosure duty e. E" parte proceedings )unusual communications with the 4udge outside of the presence of the adversay* i. Attorney&s duty of fairness re(uires him to reveal all relevant information to the 4udge in an e" parte proceeding and this overrides the normal presumption that the attorney is not to volunteer facts harmful to his client&s case f. .uty to +phold the Law i. Preventing the Client <rom Causing .eath or 7ubstantial ,odily :arm $. A,A -ules a. Attorney may disclose confidential facts to prevent death or substantial bodily harm 3. California -ules a. Provides no e"plicit e"ception to the confidentiality rules to prevent a client from causing death or substantial bodily in4ury ii. <raud $. Attorney has no duty to reveal a client&s fraud unless failure to do so would constitute 8assisting9 in the crime 3. An attorney can be compelled to reveal confidential information under the 8future crime or fraud9 e"ception to the attorney-client privilege iii. Assisting in a Crime $. An attorney may not counsel his client on how to brea# the law 3. If a client persists in a course of action that the attorney reasonably believes is criminal or fraudulent but he is not assisting in the crime the attorney may withdraw a. %he attorney may ma#e a 8noisy withdrawal 9 but he should try to protect confidences about all past conduct and even future crimes 5. If continued representation would re(uire the attorney to commit or assist in committing a crime he must withdraw Additional .uties of <airness a. .ealing <airly with Others i. Communication with adversaries and third parties $. Attorney cannot ma#e false statements of fact to other parties or third parties 3. Attorney cannot violate the legal rights of a third person in order to obtain evidence or use means with no purpose but to delay burden or embarrass them ii. Communication with anyone who is represented by counsel on the sub4ect of your in(uiry

IJ.

$. +nless a law specifically authori2es it attorney cannot communicate with them on the matter without consent of their counsel. 3. Organi2ational Entities a. Corporate counsel consent is re(uired for interviews of management or anyone whose statements can be imputed to the organi2ation for liability or as an admission b. Corporate counsel consent is not re(uired before interviewing a former employee of the corporation unless they were e"tensively e"posed to confidential and privileged information b. .ealing !ith the Press i. %he defendant&s right to a fair trial is balanced against the press&s and public&s right to #now ii. Attorneys )and their agents* must avoid ma#ing out of court statements that they reasonably should #now have a substantial li#elihood of materially pre4udicing the case $. E"ceptions )things that may be told to the press'public through out of court statements*0 a. ;atters in the public record or routine boo#ing information/ b. !arning the public informing them about an ongoing investigation or as#ing them for help in the matter/ and c. 7tatements re(uired to protect the client from substantial undue pre4udice from recent publicity that was not selfinitiated c. 7pecial .uties of Prosecutors i. %he duty of a prosecutor is to see# 4ustice not necessarily win cases. ii. Prosecutors have a duty to0 $. :ave probable cause/ 3. Protect the accused&s right to counsel )including not subpoenaing a lawyer to present evidence about a client unless it is essential and unprivileged*/ 5. %imely disclose evidence favorable to the defense/ and 6. E"ercise reasonable care to prevent associates from ma#ing pre4udicial pretrial publicity iii. Prosecutors cannot ma#e comments that have a substantial li#elihood of heightening public condemnation of the accused Preserving the .ignity of the Court and Additional .uties a. .uty to E"pedite Cases i. A,A -ule $. Lawyers have an affirmative duty to e"pedite cases ii. California -ule $. Lawyers cannot delay cases0 a. %o harass an adversary/ or b. <or their own personal gain or convenience

iii. Attorney has a duty to follow valid procedural rules and court orders unless he is ma#ing a good faith challenge to their validity )e.g. cannot abuse or obstruct discovery* b. .uty to Preserve the Impartiality and .ecorum of the %ribunal i. Attorney may not try to improperly influence anyone $. ,efore and during trial the attorney may not tal# to any prospective or empanelled member of the 4ury 3. After the trial is over if local law permits the lawyer may interview 4urors as long as he does not harass them or influence their future 4ury service ii. Attorney may not use tric#ery or 8chicanery9 )e.g. referring to inadmissible evidence or matters unsupported by evidence/ asserting personal #nowledge of the facts at issue* iii. .uty to Avoid .isruptive Conduct $. An attorney must refrain from abusive or hostile conduct belligerence or theatrics a. +nder the A,A -ules a lawyer 8may stand firm against abuse by a 4udge but should avoid reciprocation9 c. Additional .uties to the Profession and the Public i. +nauthori2ed Practice of Law )8doing things that call for the professional 4udgment of a lawyer9* $. Lawyer may not engage in the unauthori2ed )or unlicensed* practice of law )in order to safeguard the public from incompetence* a. Practicing in a state in which the attorney is not admitted is a violation unless it is allowed under e"ceptions for 8pro hac vice9 appearances in a specific matter or multi4urisdictional practices 3. A lawyer is sub4ect to discipline for assisting a nonlawyer to engaged in the unauthori2ed practice of law )e.g. negotiating with insurance ad4usters/ discussing proposed settlements with clients/ e"plaining releases and e"ecuting legal documents* a. It is permissible for nonlawyers to perform investigation and witness interviews however ii. Conduct Aenerally $. A lawyer should not engage in conduct involving dishonesty fraud deceit or misrepresentation )including in their private business or personal affairs* iii. -eporting ;isconduct of Attorneys $. A,A -ules a. A lawyer is re(uired to report another lawyer&s or 4udge&s violation of the ethical rules if it raises a substantial (uestion as to that lawyer&s honesty, trustworthiness, or fitness as a lawyer 3. California -ules

J.

a. California does not re(uire a lawyer to report another lawyer&s or 4udge&s violation of the ethical rules but instead re(uires self-reporting by the lawyer of any felony charges civil liabilities for fraud or breach of fiduciary duty disciplinary actions ta#en against him in another 4urisdiction and other difficulties .uties of 7ubordinate Lawyers a. If an attorney is under the control and supervision of another attorney )e.g. a senior partner* who orders the attorney to ta#e an action in violation of the ethical rules0 i. If the attorney&s ethical violation is clear the attorney is sub4ect to discipline ii. If the attorney&s ethical violation is debatable the partner is solely responsible iii. %he senior partner is always in violation and sub4ect to discipline if he ordered or ratified the action had direct supervisory authority and #new of the conduct at the time iv. In California the attorney can be disciplined for merely #nowing about a fellow firm member&s disciplinary violation and doing nothing to prevent it