How to Ace FYLSE/Professional Responsibility Outline

Lawyer/Client Relationship

An L owes duties to his client as soon as the relationship is formed. The relationship is formed even if the client never retains the L but approaches him regarding legal representation.

P was hit by a car…P contacted T, a real estate attorney, and asked him to represent her in a claim against the driver.

—J13Q1

Conflict of Interests

An L may not have a conflicting interest himself to his client.

A concurrent conflict of interest exists if there is significant risk that the representation of one or more clients will be materially limited by L’s responsibilities to another client, a former client, or a third person or by a personal interest of L.

• ABA: Where there is a conflict L may represent the client only if L reasonably believe there will not be an adverse effect, and the client consents in writing after consultation.

• Cal: Only requires written disclosure of the conflict arises from L’s relationship (legal, personal, etc.) with a party of witness in the same matter as the client’s that would substantially affect L’s representation.

Organization

An L representing an organization may also represent any of its directors, officers, employees, members, shareholders or other constituents.

H's lawyer reminded L that several years ago L represented a now-dissolved partnership, of which H was a limited partner, in an unsuccessful effort by the partnership to acquire an apartment building for investment purposes.

—J93Q4

L represents BHC Company, a health insurance provider.

—J11Q5

Duty of Fair Dealing

A lawyer has a duty of fair dealing to the public and third parties.

Duty of Loyalty

Lawyer has a duty of loyalty to his client and may never place his own interests above that of his client.

Rita and Fred wanted to form a corporation to be named “Rita’s Kitchen, Inc.” (RKI) for the purpose of opening a restaurant. They contacted 75 friends who agreed individually to become investors in RKI. Five of these investors also agreed to serve on the RKI Board of Directors with Rita and Fred.

Rita and Fred retained Art as their attorney to form the corporation. They told Art that 75 of their friends had committed to invest and become shareholders of RKI. Irv was a duly appointed representative of the 75 investors. Rita, Fred and Irv met with Art, and they agreed that Art would represent Rita, Fred, and all the investors. After extensive discussions with Rita, Fred, and Irv about the operation of the proposed business, Art agreed to prepare the necessary documentation to incorporate RKI.

Later, outside of Irv’s presence, Rita and Fred asked Art to draft a shareholder agreement that would specifically designate Rita and Fred as permanent directors and officers of RKI and set Rita and Fred’s annual salaries at 12.5% of the corporate earnings. Without further discussion, Art properly formed the corporation. He then prepared the shareholder agreement, including the terms that Rita and Fred had requested. The 75 investors each purchased their shares of stock and signed the shareholder agreement. RKI operated for one year but failed to make a profit. RKI ceased operations and currently owes three months of back rent under the lease.

—F07Q2

Austin had been a practicing physician before he became a lawyer. Although he no longer practices medicine, he serves on a local medical association committee that works to further the rights of physicians to be compensated fairly by health insurance providers. The committee develops recommendations, but its members do not personally engage in public advocacy. Austin is a close friend of several of the other physicians on the committee, though as a lawyer he has never represented any of them.

In his law practice, Austin represents BHC Company, a health insurance provider. BHC has been sued in a class action by hundreds of physicians, including some of Austin’s friends, for unreasonable delay, and denial and reduction of reimbursements for medical services. Austin initially advised BHC that he was not confident it had a defense to the lawsuit.

—J11Q4

Officer is the treasurer of Bank. Officer called the Bank's regular outside counsel, Lawyer, and asked that they meet immediately. Lawyer offered to come to Bank, but Officer insisted that they meet elsewhere for "confidentiality reasons."

When Officer arrived, he was visibly upset. He began by telling Lawyer that Bank was experiencing financial difficulties which, if not corrected, would lead "to more serious problems." The problem began several years ago when Officer's superior, Boss, the president of Bank, began making loans to fictitious corporations for Boss' benefit. The loans were initially for small amounts, but the amounts increased and now totaled over $1,000,000. Neither Boss nor any of the fictitious corporations is able currently to repay the loans, and interest on the loans has not been paid for some time.

Officer learned of the loans a year ago but agreed with Boss to keep quiet. In return, Boss arranged to have a $25,000 loan made to XYZ, a newly created corporation, for Officer's personal benefit. Officer reminded Lawyer that Lawyer's firm prepared the incorporating documents for XYZ Corporation.

Officer believes that all loans for both his and Boss' benefit could be repaid over time, but because Bank's auditors are scheduled to review Bank's financial statements the following week, the problem loans are likely to be revealed.

Officer asked Lawyer to agree to advise him how to protect himself, Boss, and Bank from liability. Officer requested that the information he had disclosed and Lawyer's advice be kept confidential. Lawyer has not responded to Officer's requests.

—F90Q3

Betty, a prominent real estate broker, asked her attorney friend, Alice, to represent her 18 year-old son, Todd, who was being prosecuted for possession of cocaine with intent to distribute. Betty told Alice that she wanted to get the matter resolved “as quickly and quietly as possible.” Betty also told Alice that she could make arrangements with a secure in-patient drug rehabilitation center to accept

Todd and that she wanted Alice to recommend it to Todd. Although Alice had never handled a criminal case, she agreed to represent Todd and accepted a retainer from Betty.

At a subsequent court appearance, the prosecutor offered to reduce the charge to simple felony possession and to agree to a period of probation on the condition that Todd undergo a one year period of in-patient drug rehabilitation. Alice asked Todd what he thought about this, and Todd responded: “Look, I’m innocent. Don’t I have any other choice?” Alice, cognizant of Betty’s wish to get the matter resolved, told Todd she thought it was Todd’s best chance. Based on Alice’s advice, Todd accepted the prosecution’s offer, entered a guilty plea, and the sentence was imposed.

—J02Q

Waiver of Attorney Client Privilege

A client has a right not to disclose any confidential communication between L and client relating to the professional relationship. Client is the holder of the privilege.

Duty of Competence

A lawyer owes his clients the duty of competence under ABA and CA, which requires using the requisite skill, preparation, thoroughness, and knowledge to adequately represent his client’s interests. An attorney should not agree to represent a client where the subject matter of the case is outside his area of knowledge unless he can learn the relevant law without undue delay or expense to his client, or he can associate himself with an attorney who is experienced in that area of law. L may not withhold work for nonpayment of fees.

Although Alice had never handled a criminal case, she agreed to represent Todd and accepted a retainer from Betty. Alice called her law school friend, Zelda, an experienced criminal lawyer. Zelda sent Alice copies of her standard discovery motions. Zelda and Alice then interviewed Todd. Alice introduced Zelda as her “associate.” Todd denied possessing, selling, or even using drugs. Todd said he was “set up” by undercover officers. After Todd left the office, Zelda told Alice that if Todd’s story was true, the prosecution’s case was weak and there was a strong entrapment defense. Alice then told Zelda that she, Alice, could “take it from here” and gave her a check marked “Consultation Fee, Betty’s Case.”

—J02Q

Patty was hit by a car…Patty contacted Tom, a real estate attorney, and asked him to represent her in a claim against the driver. Tom agreed, and entered into a valid and proper contingency fee agreement. Tom later told Patty that he had referred her case to Alan, an experienced personal injury attorney, and she did not object.

—J13Q1

Rita and Fred asked Art to draft a shareholder agreement that would specifically designate Rita and Fred as permanent directors and officers of RKI and set Rita and Fred’s annual salaries at 12.5% of the corporate earnings. Without further discussion, Art properly formed the corporation. He then prepared the shareholder agreement, including the terms that Rita and Fred had requested.

—F07Q2

In a brief meeting with Booker and Clare, Alex agreed to represent both of them and set up the partnership for a fee of $5,000. Because Alex had no experience with forming partnerships, he hired Dale, a recently-disbarred attorney, as a “paralegal” at a wage of $250 an hour. Although Dale had no paralegal training or certification, he had decades of experience in law practice, including the formation of partnerships. Alex notified the State Bar about hiring Dale and disclosed Dale’s involvement and disbarred status to both Booker and Clare.

—J08Q

Permissive Withdrawal

Lawyer may request withdrawal from representation where there is no material adverse effect to the client. L must give reasonable notice (ABA rule.)

Withdrawal- Returning Client’s Files

L who withdraws must return all of client’s papers and property, even if owed money.

Attorney informed Wife that it was her right to obtain another lawyer, but that if she wanted her case file, it would be necessary for her to pay the outstanding balance of her account and sign a general release of liability.

—J93Q4

Malpractice

1. ABA rule: L may not agree to limit L’s liability to the client without advising the client in writing to seek independent legal counsel regarding settlement.
2. ABA Code and Cal. rules do not allow L to prospectively limit liability to a client.

Attorney informed Wife that it was her right to obtain another lawyer, but that if she wanted her case file, it would be necessary for her to pay the outstanding balance of her account and sign a general release of liability.

—J93Q4

Duty of Confidentiality

• ABA: A lawyer has the duty to maintain all confidential communications acquired in the course of representation except the client consents and other applicable exceptions. In CA, there is no delineated duty of communication. However, the Attorney’s Oath requires lawyers to maintain the client’s secrets and confidences.

(After Patty retaining Tom as her lawyer) Tom later told Patty that he had referred her case to Alan, an experienced personal injury attorney, and she did not object.

—J13Q1

Duty of Communication

A lawyer has the duty to reasonably communicate with his or her client and keep him or her informed of the status of the case during all stages of representation.

Patty was hit by a car…Patty contacted Tom, a real estate attorney, and asked him to represent her in a claim against the driver. Tom agreed, and entered into a valid and proper contingency fee agreement. Tom later told Patty that he had referred her case to Alan, an experienced personal injury attorney, and she did not object.

—J13Q1

Later, outside of Irv’s presence, Rita and Fred asked Art to draft a shareholder agreement that would specifically designate Rita and Fred as permanent directors and officers of RKI and set Rita and Fred’s annual salaries at 12.5% of the corporate earnings. Without further discussion, Art properly formed the corporation. He then prepared the shareholder agreement, including the terms that Rita and Fred had requested.

—F07Q2

Art also failed to communicate with Irv when Rita and Frank asked him to draft a shareholders’ agreement that directly affected his interest. Art’s failure to communicate deprived Irv of the opportunity to make an informed decision concerning the terms of the shareholder agreement.

Lawyer did not tell Client that he had written a letter to Physician, Client’s doctor, assuring Physician full payment of her medical expenses from the accident out of the recovery in the case.

—J06Q5

Duty of Fairness

A lawyer owes the duty to the legal profession to maintain the public confidence, dignity, and efficiency of the legal system and the profession. Additionally, even those actions by an attorney that are not specifically prohibited by the ABA or CA professional conduct rules, or the law, may still be prohibited if they reflect poorly on the profession. A lawyer has the duty to refrain from altering or obstructing access to legally discoverable evidence. A lawyer may not pay a witness for their testimony. If it is an expert witness, the expert witness’s expenses for travel and time away from work may be paid for. Cal. rule: Prohibits a lawyer from threatening to present criminal, administrative, or disciplinary charges to obtain an unfair advantage to a civil dispute.

Patty was hit by a car, whose driver did not notice her because he was texting. Joe, a journalist, wrote a story about Patty’s “texting” accident. (Alan represented Patty in the personal injury suit.) Alan sent a $200 gift certificate to Joe with a note stating: “In your future coverage of the ‘texting’ case, you might mention that I represent Patty.”

—J13Q1

Patty was hit by a car, whose driver did not notice her because he was texting. Patty met with Alan (her attorney) and told him that Walter, a homeless man, had seen the driver texting just before the accident. Alan then met with Walter, who was living in a homeless shelter, and said to him: “Look, if you will testify truthfully about what you saw, I’ll put you up in a hotel until you can get back on your feet.”

—J13Q1

When Bertha, counsel for the class of physicians, heard the defense Austin planned to assert in the lawsuit, she wrote him a letter stating that if he presented that defense she would report him to the state bar for engaging in a conflict of interest.

—J11Q4

Duty of Candor to the Court

Lawyer shall not bring or defend a proceeding unless there is a basis in law and fact for doing so that is not frivolous.

Austin initially advised BHC that he was not confident it had a defense to the lawsuit. After further research, however, Austin discovered that a stated policy of the health care law is the containment of health care costs. He advised BHC that he could plausibly argue that reimbursements to physicians may legally be limited to avoid a dramatic increase in the health insurance premiums of patients. He explained that he would argue for a modification of existing decisional law to allow such a result based on public policy.

—J11Q4

Duty to Report Ethical Violations

• ABA: Lawyer has an ongoing duty to report ethical violations of another L.
• Cal rule: Permits but does not require, the reporting of ethical violations.

?

—J11Q4

Ex parte Communication

A lawyer, if meeting with a person who is not represented by an attorney, must not make any indications that he represents that person’s interests or is impartial.

Patty (Plaintiff) met with Alan (Attorney) and told him that Walter, a homeless man, had seen the driver texting just before the accident. Alan then met with Walter, who was living in a homeless shelter, and said to him: “Look, if you will testify truthfully about what you saw, I’ll put you up in a hotel until you can get back on your feet.”

—J13Q1

Referral

Under the ABA and CA, a lawyer may refer a client to another lawyer with the informed consent of the client and as long as the referral agreement is ‘non-exclusive.” Under the ABA, referral fees are prohibited; under CA, they are permitted as long as the client gives informed consent and the total fees are not increased due to the referral agreement.

Patty was hit by a car…Patty contacted Tom, a real estate attorney, and asked him to represent her in a claim against the driver. Tom agreed, and entered into a valid and proper contingency fee agreement. Tom later told Patty that he had referred her case to Alan, an experienced personal injury attorney, and she did not object.

—J13Q1

Fees Generally

Under the ABA, fees must be reasonable and agreed upon by the client (consented to) in writing. In CA, the fees must be ‘not unconscionable’ and agreed upon (consented to) by the client in writing.

Dale spent four hours on his own preparing the partnership documents and meeting with Booker and Clare about them. Alex paid Dale $1,000 for his work. Alex spent a total of two hours on the partnership matter, including the initial meeting with Booker and Clare, reading the partnership documents in order to learn about partnerships, and a final meeting to have Booker and Clare sign the documents.

—J08

 

Fee Splitting

Fee splitting is prohibited by both the ABA and CA with non-lawyers. However, under the ABA, a lawyer may split fees with another lawyer if (i) it is in proportion to the services rendered or both L’s are jointly and severally liable, (ii) the total fee is reasonable, (iii) the client gives informed consent, and (iv) the total fee is not increased. Under CA, a lawyer may split fees with a non-lawyer if (i) the total fee is not unconscionable, and (ii) the client gives written consent.

(Patty the plaintiff retained Tom as her attorney.) They entered into a valid and proper contingency fee agreement. (Tom later referred her case to another attorney Alan.) Unknown to Patty, Alan agreed to give one-third of his contingency fee to Tom.

—J13Q1

Contingency Fees Agreement

Contingency fees are fees to be paid as a percentage of a successful judgment. Under the ABA and CA, contingency fees must be in writing, clearly state the method for calculating the fee, and identify if litigation expenses are to be deducted before or after the calculation of the contingency fee. CA additionally requires the lawyer to note that the fees are negotiable and to indicate how legal fees not covered by the contingency will be paid.

(Patty the plaintiff retained Tom as her attorney.) They entered into a valid and proper contingency fee agreement.

—J13Q1

Contingency Fee Limitations

Generally, L may not have a proprietary interest, or stake, in a cause of action. However, contingency fees may be allowed subject to the following limitations. Contingency fees in domestic cases: ABA rule prohibits. ABA Code rarely allows. Cal. rule only prohibits if it causes marriage to break up. Such an agreement must be in writing with the percentage clearly identified.

Attorney stated that he would continue to represent her if she would agree to pay him for his services, in addition to the $5,000, 25 percent of any property award she would receive in the divorce proceedings.

—J93Q4

Contingency Fee- Advances

Lawyer may advance litigation expenses to an indigent client and recover the expenses from the contingency fee. ABA: does not allow advances for living expenses. CA: Does allow advances for living expenses, so long as the advance is a loan and not a gift, and the agreement is in writing. Cal.: Presumes any guarantees, warranties, or predictions to be a violation of the rules.

Lawyer and Client entered into a valid, written contingency fee agreement, whereby Lawyer would receive one-third of any recovery to Client related to the truck accident. Because Client was indigent, however, Lawyer orally agreed to advance Client’s litigation expenses and to lend her $1,000 monthly in living expenses that he would recoup from any eventual settlement.

—J06Q5

Jones & Smith is a law firm concentrating on plaintiffs' personal injury litigation. The firm has decided to take several steps to increase its business volume. First, the firm plans to run television advertisements stating that the firm offers to handle cases for discount contingency fees. The advertisements will state that, while most firms normally charge a 33% contingency fee for handling a personal injury case, Jones & Smith will undertake representation for a fee of 25%. In addition, the advertisements will state that the firm offers interest-free advances against prospective judgments in cases of clear liability of up to 50% of the firm's estimated value of the case.

—F1Q5

Unauthorized practice of law

L shall not practice with or form a partnership or association authorized to practice law with a non lawyer

Finally, the firm plans to make use of nonlawyers in order to reduce costs. The firm will employ several paralegals and investigators who will be responsible for working up personal injury cases. Their activities will include fact investigation, witness interviews, negotiation with insurance adjusters, meetings with clients to discuss proposed settlements, and settlement conferences with clients to explain releases and to execute other documents necessary to conclude a case.

Here, paralegals and investigators are allowed to gather facts, as investigators often do, and paralegals help to type up such reports. The witness interviews may be appropriate if the lawyer has provided the investigators and paralegals with information they want addressed and specific reports are made or they are just doing fact gathering. The negotiations and meetings to discuss settlements should be performed only by the lawyers since they best understand what is in their client’s interest, and these types of tasks require specific legal knowledge and judgments that should be made by lawyers, and lawyers have a duty to communicate with their clients. Non-lawyers should only execute documents that the lawyer instructs them to prepare, and the lawyer should review them prior to concluding any case.

Advertising

Lawyer shall not make false or misleading communications about L or the L’s services. L may advertise services through written, recorded, or electronic communication unless the prospective client made known to L their desire to not be solicited. An attorney cannot engage in real-time phone or live contact with prospective clients with whom he has no prior personal or business relationship. Any advertising must be labeled attorney advertising, it cannot make any misrepresentations or be misleading, and it must state the name of at least one attorney responsible for the material. In California, making any guarantees or warranties as to results is considered presumptively improper and constitutes a misrepresentation.

Patty was hit by a car, whose driver did not notice her because he was texting. Joe, a journalist, wrote a story about Patty’s “texting” accident. (Alan represented Patty in the personal injury suit.) Alan sent a $200 gift certificate to Joe with a note stating: “In your future coverage of the ‘texting’ case, you might mention that I represent Patty.”

—J13Q1

Advertising- Ads

L may advertise services through written, recorded or electronic communication unless the prospective client made known to L their desire to not be solicited.

All advertisements must (1) Contain the name the office address of at least one lawyer (2) Be labeled as advertising material

ABA: envelope needs to state “Advertising Material” Cal: need to label as communication or solicitation but must not use any particular words so long as in 12-point type on first page.

Cal: L must retain a correct copy of the communications for two years. Cal.: Presumes a violation of ethical rules for communications that contain a dramatization without a disclaimer that it is a dramatization.

First, the firm plans to run television advertisements stating that the firm offers to handle cases for discount contingency fees. The advertisements will state that, while most firms normally charge a 33% contingency fee for handling a personal injury case, Jones & Smith will undertake representation for a fee of 25%. In addition, the advertisements will state that the firm offers interest-free advances against prospective judgments in cases of clear liability of up to 50% of the firm's estimated value of the case.

—F01Q5

Jones & Smith is a law firm concentrating on plaintiffs' personal injury litigation.

The firm has decided to take several steps to increase its business volume.

Second, the firm plans to acquire from the police department lists of individuals who have been involved in automobile accidents, and to mail letters to those persons informing them that the firm is available for consultation about their legal rights arising out of the accident. Individuals who have been hospitalized as a result of an accident will receive a flower arrangement, delivered "compliments of Jones & Smith, Attorneys at Law."

—F01Q5

Paying for Expenses

An attorney may pay reasonable expenses for a witness in connection with testimony at trial; however, any payment cannot be made in connection with the witness’ testimony at trial. Reasonable expenses in connection with a witness’ testimony could include travel expenses, a place to stay and meals during the time that the witness is required to be present at trial.

Patty was hit by a car, whose driver did not notice her because he was texting. Patty met with Alan (her attorney) and told him that Walter, a homeless man, had seen the driver texting just before the accident. Alan then met with Walter, who was living in a homeless shelter, and said to him: “Look, if you will testify truthfully about what you saw, I’ll put you up in a hotel until you can get back on your feet.”

—J13Q1

Consensual Sex

• ABA: Prohibits sexual contact between lawyer and clients unless a preexisting relationship.
• Cal: Allows sexual relationships between lawyers and clients unless L: (1) demands sex a condition of representation; or (2) uses coercion or undue influence; or (3) represents the client incompetently because of the sexual relationship

Client was reluctant to accept the offer. Realizing, however, that this case could drag on indefinitely with little chance of substantial recovery, Lawyer took Client out for an expensive dinner, at which they shared two bottles of wine. Afterward Lawyer took Client to Lawyer’s apartment where they engaged in consensual sexual relations. Later that evening Lawyer persuaded Client to accept the settlement offer by agreeing to give her the net proceeds after his contingency fee and the amounts he had advanced were deducted and not to pay Physician anything.

—J06Q5

Duty to Exercise Independent Legal Judgment

Betty, a prominent real estate broker, asked her attorney friend, Alice, to represent her 18 year-old son, Todd, who was being prosecuted for possession of cocaine with intent to distribute. Betty told Alice that she wanted to get the matter resolved “as quickly and quietly as possible.” Betty also told Alice that she could make arrangements with a secure in-patient drug rehabilitation center to accept Todd and that she wanted Alice to recommend it to Todd. Although Alice had never handled a criminal case, she agreed to represent Todd and accepted a retainer from Betty.

At a subsequent court appearance, the prosecutor offered to reduce the charge to simple felony possession and to agree to a period of probation on the condition that Todd undergo a one year period of in-patient drug rehabilitation. Alice asked Todd what he thought about this, and Todd responded: “Look, I’m innocent. Don’t I have any other choice?” Alice, cognizant of Betty’s wish to get the matter resolved, told Todd she thought it was Todd’s best chance. Based on Alice’s advice, Todd accepted the prosecution’s offer, entered a guilty plea, and the sentence was imposed.

—J02Q3

Duty of Zealousness

Betty, a prominent real estate broker, asked her attorney friend, Alice, to represent her 18 year-old son, Todd, who was being prosecuted for possession of cocaine with intent to distribute. Betty told Alice that she wanted to get the matter resolved “as quickly and quietly as possible.” Betty also told Alice that she could make arrangements with a secure in-patient drug rehabilitation center to accept Todd and that she wanted Alice to recommend it to Todd. Although Alice had never handled a criminal case, she agreed to represent Todd and accepted a retainer from Betty.

At a subsequent court appearance, the prosecutor offered to reduce the charge to simple felony possession and to agree to a period of probation on the condition that Todd undergo a one year period of in-patient drug rehabilitation. Alice asked Todd what he thought about this, and Todd responded: “Look, I’m innocent. Don’t I have any other choice?” Alice, cognizant of Betty’s wish to get the matter resolved, told Todd she thought it was Todd’s best chance. Based on Alice’s advice, Todd accepted the prosecution’s offer, entered a guilty plea, and the sentence was imposed.

—J02Q