Pro Resp Law Chart

8/8/2019 Pro Resp Law Chart

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RULE DESCRIPTION COMMENTS CALBAR Rules CA B&P Code

requests for information;

1.5 Fees

• No unreasonable fees or expenses.

• Reasonableness is based on time &labor; skill required; need to turnaway other business; local rates;

• Communicate to client preferably inwriting

Rule 4-200

Basically same except says“unconscionable” instead of unreasonable.

§ 6146

Limits fees on medicalmalpractice claims

§ 6148

Communicate to client must bein writing if >$1,000.

1.6Confidentiality of Information

• No disclosure w/o informed consentor implied consent;

• Secure advice about lawyer’scompliance with rules;

• To defend lawyer in malpractice or against civil or criminal charges;

• To comply with law or court order;

• Reasonably certain death or bodilyharm;

§ 6068e

Never disclose anythingregardless of impact.

1.7 Conflict of Interest: Current

Clients• Cannot represent client if it will

adversely impact another client;

• Or will limit representation of another client;

UNLESS:

• the lawyer believes he can handle both (all) cases competently anddiligently;

• Not prohibited by law;

Rule 3-310

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• The case does not involve theclaims of one client against another represented by the same lawyer inthe same litigation;

• Each affected client gives informedconsent confirmed in writing.

1.8 Conflict of Interest: CurrentClients: Specific Rules

a) Cannot Enter Into BusinessArrangement With Client Or AcquireAny Ownership Interest Adverse ToThe Client Unless:

• Deal is fair and reasonable;

• Deal is disclosed in plain languagein writing to the client;

• Client is advised in writing to seek advice of an independent attorneyand is given adequate time to do so;

•Client gives informed consentsigned in writing agreeing to theterms of the deal, the lawyers role

,and indicating whether or not thelawyer is representing the client inthat particular deal.

b) Cannot use information to the

disadvantage of the client unless the

client gives informed consent or required by the rules.

c) No gifts unless related to the client.d) No media or book rights based on

representation in the casee) No financial assistance to client

except court costs and expenses incontingency cases; or if the client isindigent.

f) No third party fees accepted unless:

Rule 3-300

No security interest adverse to client.

Rule 4-400 is same as MR 1.8cgifts.

Rule 4-210

OK to pay third parties on behalf










•Client gives informed consent;

• No interference with professional

judgment for with client-lawyer relationship;

• Information relating torepresentation of client is protectedas required by Rule 1.6.

g) When representing multiple clients,

no blanket settlement or plea unlesseach involved client gives signedinformed consent in writing andlawyer discloses existence and natureof all deals or pleas.

h) No agreement limiting lawyer’s

malpractice liability unless client hasindependent counsel AND

malpractice settlement withunrepresented clients unless client isadvised in writing to seek independent legal counsel.

i) Lawyer cannot acquire proprietaryinterest in a case unless acquiring alien against fees or it is a contingencyfee deal.

j) No sex with client unless it pre-datedthe client-lawyer relationship.

k) Any prohibition in this rule except for sex applies to all members of a firm if it applies to one member.

of client with client consent; canloan money after

Rule 3-120 (sex w/ client).

Lists myriad exceptions.

§ 6106.8

§ 6106.9

1.9 Duties to Former Clients a) Cannot represent a client if the persons interests are materiallyadverse to a former client in the sameor substantially related matter

b) Lawyer cannot represent a client if your old firm represented an

3-310e










adversarial party or if you at the oldfirm you gained privileged (Rules 1.6and 1.9(c)) information about the

adversarial party.c) If you or your firm or your former

form ever represented a client youcan never use any information yougained during that representationagainst the client nor can you evendisclose the existence of therepresentation unless it is permittedin the rules or has become generallyknown.

1.10Imputation of Conflicts of Interest

a) If any lawyer in a firm is barred by

the rules from representing a client;then the entire firm is barred unlessthe barred lawyer’s interest in thecase is purely personal and will notaffect any of the firm’s other lawyers.

b) If a lawyer with specific knowledge

of a case and a client leaves the firm;and if the firm no longer representsthat client; then the firm is free torepresent someone with interestsmaterially adverse to that clientUNLESS it is the same case andsomeone remaining at the firm has privileged information about theformer client.

c) Disqualifications under this rule may be waived by the client under theconditions of MR 1.7.

d) Disqualification of lawyers in a firmwith former or current governmentlawyers is governed by MR 1.11.










1.11

Special Conflicts of Interestfor Former and CurrentGovernment Officers andEmployees

a) Current or former government

lawyers are subject to MR 1.9(c) andalso cannot represent a client in amatter over which the lawyer hadsubstantial involvement whileworking for the government unlessthe government gives its informedconsent confirmed in writing.

b) If one lawyer in a firm is barred from

a matter under this rule then so are alllawyers in the firm unless the lawyer is appropriately screened from participation in the matter AND

written notice is provided to the

government so that they can ascertaincompliance with the rules.

c) If a lawyer obtained confidential

information about a person whileworking for the government hecannot represent someone withmaterially adverse interests.However, the firm can as long as thelawyer is timely screened from participation and receives no share of the fee on that engagement.

d) Current government employees are

subject to MR 1.7 and MR 1.9(c)AND may not participate in mattershe was involved with while not agovernment employee unless thegovernment gives its informedconsent confirmed in writing.

§ 8920§ 8921

1.12 Former Judge, Arbitrator,Mediator or Other ThirdParty Neutral

a) No representation unless informed

consent confirmed in writing. b) Judge cannot negotiate for

§ 6131










employment; law clerk can after notifying judge.

c) If one lawyer is disqualified all are

disqualified unless timely screenedAND written notice sent to all partiesand the court.

d) Arbitrators can represent clients whothey formerly served as partisans onan arbitration panel.

1.13 Organization as Client a) Lawyer works for the company. b) If lawyer knows that an officer,

employee, or other person associatedwith the company is about to actillegally or against the best interest of the company, the lawyer must protectthe organization.

• Try to minimize disruption to thecompany.

• Ask for reconsideration of thematter.

• Advise the person that a secondlegal opinion should be sought inorder to present companymanagement with two opinions.

• Go higher up or to the top of the

company.c) If lawyer goes to the top and nochange, lawyer may resign per MR 1.16.

d) Lawyer should always point out thathis client is the company, especiallywhen meeting with officers or employees whose interests may differ from the company’s.

e) Lawyer can represent the companyand its officers or employees as long










as an officer of the company (not theone being represented) approves thedual representation per MR 1.7.

1.14Client With DiminishedCapacity

a) Try to retain normal relationship.

b) If lawyer believes that client cannot

act in own best interests and is at risk,lawyer may talk to others able to takeaction to protect client or to seek appointment of a guardian ad litem,conservator, or guardian.

c) Lawyer may release informationunder MR 1.6(a) but only to theextent necessary to protect theclient’s interests.

Chapter 3 generally states thatyou should always represent your client competently.

1.15 Safekeeping Property

a) Keep complete records; segregatefunds.

b) Lawyer may deposit his own fundsinto client trust account only to theextent necessary to pay bank fees.

c) Fees paid in advance go into trust

account and are removed as earned.d) Notify client upon receipt of funds belonging to client.

e) Disputed funds remain in trust; other amounts distributed promptly.

Rule 4-100

5 year retention requirement.

§ 6128Article 14 deals withfunds for indigent defense.See § 6210 - § 6228

1.16 Declining or TerminatingRepresentation

a) Must withdraw and cannot begin

representation if:

• Representation will violate rules.

• Lawyer physically or mentally

Rule 3-700Must if malicious or baseless legalaction

§ 6068hSays you can’t reject the causeof the defenseless or theoppressed out of consideration










unfit.

• Lawyer is discharged.

b) May withdraw if:

• No material adverse impact onclient.

• Client persists in illegal or fraudulent activity.

• Client has used lawyer’s services to perpetuate a fraud or crime.

• Client insists on action that lawyer disagrees with.

• Client does not meet obligation tolawyer and has been reasonablywarned.

•

Engagement has become anunreasonable financial burden onthe lawyer or the client has madethe engagement unreasonablydifficult.

• Other good cause for withdrawal.c) Lawyer must notify the court of

planned withdrawal per court rules.d) Lawyer should make termination as

easy on client as possible; give timeto find another lawyer; return unusedretainer, papers, etc.

Adds-can’t get along w/ co-counsel.

DOES NOT say b1 – OK if noadverse impactDOES NOT say if financial burden.

of yourself.

1.17 Sale of Law Practice A lawyer may sell a law practice or anarea of law practice including goodwill if:a) Lawyer retires, moves, stops an area

of practice. b) Entire practice or area of practice is

sold to another lawyer or group of lawyers.

c) Seller gives notice to each clientregarding:

• Proposed sale

Rule 2-300










• Client’s right to retain other counselor take possession of the file.

• If no reply from client in 90 days,

OK to transfer file.• If notice cannot be given, files

cannot be transferred without courtorder.

d) No fee increases due to sale.

1.18 Duties to Prospective Client a) A person who discusses with alawyer the possibility of forming aclient-lawyer relationship is a

prospective client. b) Even if lawyer is not hired, no

information may be disclosed exceptformer client info per MR 1.9.

c) Lawyer cannot represent a client withinterests adverse to the prospectiveclient if the prospective client provides the lawyer with information potentially harmful to the potentialclient. If one lawyer in a firm isdisqualified under this rule, then thewhole firm is disqualified except as

in (d).d) Exceptions to c:

•Both prospective and current clients provide informed consentconfirmed in writing.

• Lawyer who received theinformation tried to stop the clientfrom telling him more and

i) The disqualified lawyer is

timely screened










ii) Prompt written notice to the prospective client.

2 COUNSELOR

2.1 Advisor

• Independent professional judgment

• Candid Advice

• Can consider moral & other factorswith the law

2.3Evaluation for Use by ThirdPersons

a) May provide data to third parties if compatible with client relationship

b) Informed Consent if material issue

or impact

c) Unless authorized, all protected by

MR 1.6

2.4 Lawyer Serving as ThirdParty Neutral

a) Arbitrator or mediator or similar

b) Make sure unrepresented partiesknow you are not representingthem.

Rule 1-710

You are subject to the Code of Judicial Ethics

3 ADVOCATE

3.1Meritorious Claims andContentions

Must have basis in law and fact; notfrivolous

Rule 3-200 § 6068c

3.2 Expediting LitigationAttempt to expedite the litigationconsistent w/ client int.

3.3 Candor Toward the Tribunal

a) A lawyer shall not knowingly:

• False statement of material fact

• Fail to disclose adverse info to judge

• Offer or allow false testimony b) Cannot allow client to fix the jury or

other c) Disclose all known facts in ex parte

proceedingsd) Must take reasonable remedial

measures

Rule 5-200Rule 5-220

§ 6068d

3.4 Fairness to Opposing Partyand Counsel

A lawyer shall not:a) Hide or destroy documents or

obstructRule 5-300Rule 5-310

§ 6068f










b) Falsify evidencec) Knowingly disobey an obligationd) Be a jerk about discovery

e) Introduce opinion or irrelevant issuesf) Advise third parties not to give info

unless:

• Person is relative or agent of client

•And that person’s interests won’t beharmed

3.5Impartiality and Decorum of the Tribunal

A lawyer shall not:a) Try to bribe the judge or fix the jury b) Communicate ex parte w/ judge or

jury unless OK c) Talk to jurors after case if

• Court prohibits it

• Juror doesn’t want to talk to him

•Misrepresentation, coercion or harassment

Rule 5-300Rule 5-320

§ 6068b

3.6 Trial Publicity a) No prejudicial statements to the

media b) Notwithstanding a), lawyer may

state:

• Claim, offense, or defense, names if allowed

• Information that is public record• Scheduling or result of litigation]

• Request for assistance in gatheringinfo

• Public good danger warning

• Name and address of criminallyaccused

• Info necessary to catch if not caught

• Arrest place and time

• Names of arresting and

Rule 5-120Substantially same.

Rule 1-320bSays no gifts to the media. Noequivalent in MR?

§ 6068f










investigating agencies and officersc) Notwithstanding a) lawyer can make

any statement to counteract negative

publicityd) No lawyer shall violate a)

3.7 Lawyer as Witness

a) Lawyer can’t advocate if he will bewitness unless:

• Testimony relates to uncontestedissue

• Testimony relates to legal servicesrendered

• Disqualification of lawyer would behardship on client

b) A lawyer may advocate in a trial in

which another lawyer in the firm islikely to be called as a witness unless precluded from doing so by 1.7 or 1.9.

Rule 5-210

3.8Special Responsibilities of aProsecutor

a) Don’t charge if no probable cause b) Make sure defendant knows he can

have a lawyer c) Don’t seek waivers from

unrepresented defendantsd) Timely discovery to defensee) Don’t subpoena a lawyer about a

client unless:

• No privilege• Evidence is essential

• No other alternativef) Don’t shoot mouth off to media

3.9Advocate in NonadjudicativeProceedings

Make sure everyone knows you’re alawyer and conform to 3.3a– 3.4a-c 3.5

4 TRANSACTIONS

WITH PERSONS

OTHER THAN










CLIENTS

4.1Truthfulness in Statements toOthers

a) No false statements of material facts

b) No failure to disclose

4.2Communication With PersonRepresented by Counsel

Don’t talk to someone who has their ownlawyer unless court order or OK by other lawyer.

Rule 2-100Says nothing about court order.

4.3Dealing With UnrepresentedPerson

Don’t fake that you are nonpartisan; nolegal advice other than to get a lawyer.

4.4Respect for Rights of ThirdPersons

a) No ripping just to rip b) Must notify sender of items sent in

error

§ 6068f

5LAW FIRMS AND

ASSOCIATIONS

5.1Responsibilities of Partners,Managers, and SupervisoryLawyers

a) Partners take reasonable efforts that

all lawyers in firm comply with MR b) Supervisors make reasonableassurance that subordinates comply.

c) Lawyer responsible for another’sviolation if:

• Lawyer orders or ratifies

• Knows but does not mitigate

5.2Responsibilities of aSubordinate Lawyer

a) Lawyer bound by MR regardless of instructions

b) Not in violation if following orders

on a reasonable judgment call.

5.3 Responsibilities Regarding

Nonlawyer Assistants

a) Supervisors to ensure reasonable

compliance with MR. b) Ensure subordinate conduct is

compatible with yours if workingtogether on a case.

c) Responsible for subordinate errors if:

• Lawyer orders or ratifies

• Knows but does not mitigate










5.4Professional Independence of a Lawyer

a) No fee-sharing w/ non-lawyer except:

• Time payments after death of a

lawyer • Payment to estate of lawyer for

amounts due

• Firm employees in retirement plan

• May share court awarded legal feesw/ non-profit client

b) Cannot partner w/ non-lawyer if firmwill practice law

c) Cannot allow client to direct your

prof judgmentd) Cannot practice as a PC or LLC if:

• A non-lawyer owns a piece of the business

• A non-lawyer is a director or officer

•A non-lawyer has right to direct or control lawyer’s judgment

Rule 1-310Cannot partner w/ non-lawyer if firm

will practice lawRule 1-311

Cannot hire disbarred or suspendedmembers to help render services toclient in any way unless you notifyeverybody and their brother.

Rule 1-310aFinancial arrangements with non-lawyers; same as MR 5.4a

Rule 1-600a No fee sharing at all

5.5 Unauthorized Practice of Law; MultijurisdictionalPractice of Law

a) Cannot violate or assist in violationof local rules

b) If not admitted to practice in the jurisdiction cannot:

• Open an office or practicecontinually

• Hold out as licensed to practice

therec) Can work temporarily out of

jurisdiction if:

• Local counsel

• Connected to the case

• ADR related to a case in your jurisdiction

• Other business in that jurisdictiond) May provide legal services out of

area if:

Rule 1-300a) Cannot aid anyone in

unauthorized practice of law b) Cannot practice in a jurisdiction

where doing so would be aviolation of local rules.

§ 6104§ 6105










•Your client has a presence there andit is for your client and no pro hacvice application required.

• In compliance with Federal Law.

5.6Restrictions on Right toPractice

a) Cannot participate in offering or making:

• Employment arrangement thatrestricts to practice law upontermination

• Termination of right to practice iselement of settlement in a clientcontroversy.

5.7Responsibilities RegardingLaw-Related Services

a) Lawyer is subject to MR if services provided are done outside a normal

client-lawyer relationship and theyare services that:

• By the lawyer normally or

• Performed by any entity the lawyer controls.

b) Services could legally be performed by a non lawyer.

6 PUBLIC SERVICE

6.1 Voluntary Pro Bono PublicoService

Should try to do 50 hours per year.a) 50 hours to:

• poor people

• charitable organizations

b) provide additional services through:• no-fee service to rights

organizations

• reduced fees to poor people

• activity to improve the professionShould also give money

6.2 Accepting Appointments Don’t seek court appointment to representsomeone if doing so would lead to:a) Violate MR b) Unreasonable financial burden on










lawyer

c) Case is repugnant and would affect

judgment

6.3Membership in LegalServices Organizations

OK to serve as officer or member of alegal services organization, even if it hasinterests adverse to a client as long as:a) You don’t make decisions on matters

that would be incompatible with your client obligations.

b) Would hose a client of theorganization who is adverse to your regular client.

6.4Law Reform ActivitiesAffecting Client Interests

OK to try and change the law if it willhelp your client. But you must disclosethat if approved, the action will help one

of your clients.

6.5 Nonprofit and Court-Annexed Limited LegalServices Programs

a) If you provide short-term non-continuing legal service (postearthquake advice, etc.) then you are:

• Subject to 1.7 & 1.9a only if youare aware of conflict-of-interest

• Subject to 1.10 only if you knowthat another firm lawyer is subjectto 1.7 or 1.9a.

7

INFORMATION

ABOUT LEGAL

SERVICES

7.1Communications Concerninga Lawyer’s Services

No false or misleading statements and noleaving out a fact so it won’t be materiallymisleading.

Rule 1-400dAlso, 1-400f says you keepeverything 2 years

7.2 Advertising a) Subject to 7.1 & 7.3, may advertise

b) No gifts or payments for referrals

Rule 1-320bDeals with referrals. Allows gifts if Article 9










except:

• May pay reasonable cost of ads

• Pay normal referral fees

• Pay for a law practice per 1.17• Refer clients to a firm with a

reciprocal referral arrangement if:i) The reciprocal agreement is

not exclusive andii) The client is informed of the

existence and nature of theagreement

c) Any communication in connectionwith this rule must have name andoffice address of at least one lawyer who wrote it.

they did not lead to and were notoffered in order to get theengagement.

Rule 2-200bSame as MR 7.2b

§ 6152 No trolling for work aroundthe local jail.

§ 6154 No runners or cappers.

7.3Direct Contact WithProspective Clients

a) Cannot directly contact a prospectiveclient unless:

• Target is a lawyer

• Target is a family member or closefriend

b) No calls, emails, etc. to prospectiveclient if:

• Target told you to leave him alone

•Coercion or harassmentc) All envelopes, emails, etc. must begin

and end with “advertising material.”

d) OK to work for prepaid legal plansthat use boiler room tactics.

Rule 1-400c

7.4Communication of Fields of Practice and Specialization

a) OK to communicate areas of specialization or areas not handled

b) “Patent Attorney”

c) “Proctor in Admiralty”

d) Cannot claim specialist unless:

•Certified by State or ABA AND

• Name of certifying authority notedon ad.










7.5 Firm Names and Letterheads

a) No use of firm name that violates 7.1

or implies public, gov’t., charitableaffiliation.

b) OK to list all locations but must saywho practices where

c) No mention of a firm member whoholds public office

d) No implied affiliation unless such

exists.

See standards of rule 1-400

7.6

Political Contributions toObtain Government LegalEngagements or Appointments by Judges

Cannot accept court appointed or government jobs if you makecontributions designed to solicit same.

8

MAINTAINING THE

INTEGRITY OF THE

PROFESSION

8.1Bar Admission andDisciplinary Matters

a) No false statements b) Must disclose facts and reply to

requests for info unless conflict withMR 1.6

Rule 1-200 basically same.a) No false statements b) Cannot further an application for

a person you know to beunqualified

c) OK to serve as counsel for applicant.

§ 6068i

8.2 Judicial and Legal Officials

a) No starting rumors or makingdeliberate lies

b) If candidate for the bench, must

comply with Code of JudicialConduct

Rule 1-700§ 8920§ 8921

8.3Reporting ProfessionalMisconduct

a) Must report lawyers who you knowviolated MR

b) Crooked judgesc) Not required that you violate MR1.6

8.4 Misconduct It is misconduct to:a) Violate MR or help others do so

b) Engage in a criminal act that reflects

Rule 1-120§ 6068o§ 6100










adversely on your honesty or trustworthiness

c) Dishonesty, fraud, deceit or

misrepresentationd) Engage in conduct prejudicial to the

admn. of justice; Discrimination based upon race, sex, national origin,religion, etc. is a violation of this provision.

e) Imply or state you can influence thegov’t.

f) Help a judge break the MR

Rule 2-400 (discrimination)

§ 6101§ 6102

8.5Disciplinary Authority:Choice of Law

a) You are subject to the rules of your home jurisdiction regardless of wherethe services were rendered. You are

also subject to the rules of the jurisdiction where you renderedservices regardless of whether or notyou are admitted to practice there.

b) Choice of Law:

• Local rules apply first

• Rules of jurisdiction where issueoccurred next











Topic Sections Hints

Disqualifying Lawyers MR 1.7MR 1.8MR 1.9MR 1.10MR 1.1118 USCA § 207 Cannot use contacts to influence gov’t. decisions.







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Pro Resp Law Chart