Legal Professions Outline Professor Scheflin 1.

General 1. Regulation 1. Lawyers are the most regulated 2. Who regulates them? It stems from the separation of powers 1. Legislature and supreme ct collaborate to control them 2. Sup ct has the ultimate authority over them (1) CA sup ct should have the final say (2) BUT attorney client priv would be found in the Code of Evidence (legislature has the ultimate authority but its not clear why. The sup ct honors this abdication) (1) sup ct can in no way alter the legislative scheme when it comes to privileges 2. State Bar 1. State bar created by legislation in 1927 but its answerable to the CA sup ct 2. State bar has no final authority over anything 3. It must be approved by the legislature or by the court 3. State Bar court made to alleviate cases from the courts of appeal 1. Not the final authority. Theres an appeal to the CA sup ct 4. State bar proposes rule, lawyers in the membership comment on it and send it back. 1. It doesnt become a rule unless its the CA sup ct that adopts it

REGULATION OF THE LEGAL PROFESSION 2. The Ethics Regulators 1. Courts and Legislature 1. Doctrine of Federal Preemption 1. Reg of atty is generally a matter of state law (1) Courts = primary regulators 2. Fed law preempts ONLY when: (1) Constitutional rights involved; OR (2) A federal interest involved and the state has encroached 2. The Doctrine of State Preemption 1. Baron v City of LA (ordinance says they must register as a lobbyist if they appear in front of a tribunal) (1) the State Bar Act preempts the field of regulation of attorneys only insofar as they are practicing law (1) practicing law can be seen as the exclusive right to represent another in court (2) its a misdemeanor to practice law in CA w/o a license, but there is no definition found of what practicing law is exactly (3) the character of the act, not the place where it occurs, is the decisive element and if the application of legal knowledge and technique is required 3. The Doctrine of Negative Inherent Powers (Inherent Authority)

2.

3.

4.

Three aspects of the doctrine (1) Irreducible inherent authority - powers fundamental to the essence of the ct as a constitutional tribunal (2) Necessary to the exercise of all others - powers permitting the ct to conduct its business (1) Eg. Regulation of lawyers (3) Necessary in the pursuit of a just result - powers which arise from notions of equity, neutrality, and fairness 2. CA courts have inherent powers, independent of statute, derived from (1) the courts equitable power derived from the historic power of equity courts and (2) supervisory or administrative powers which all courts possess to enable them to carry out their duties 3. Whenever an argument is available that a serious disadvantage to the administration of justice might occur, the doctrine may be raised 4. Potter v Eli Lilly - (lawyers settle but dont inform the judge) (1) trial court has sufficient inherent authority to conduct an investigation and a hearing to determine whether its judgments accurately reflect the truth The American Bar Association 1. Established in 1878, voluntary organization of lawyers 2. Canons of Ethics and Model Code of Professional Responsibility were abandoned 3. ABA Model Rules of Professional Conduct was officially published in 1983 American Law Institute 1. Founded in 1923, invitation only, prepare Restatements of the Law 2. Restatement 3d, The Law Governing Lawyers 3. CA has its own rules The CA State Bar 1. The Functions of the State Bar 1. Has the authority to sue, make contracts, own and maintain property, lobby before the Legislature, create and maintain programs to assist the public in learning of their legal rights, and help facilitate lay persons to obtain competent legal counsel 2. Administer a client security fund, establish and maintain a procedure for the arbitration of disputes, regulate admission to the bar, draft standards to govern the conduct and activities of Bar members, and conduct disciplinary investigations and impose public or private reproval for willful violations of the Rules of Professional Conduct 3. State bar created by legislation in 1927 but its answerable to the CA sup ct 4. State bar has no final authority over anything 5. State bar proposes rule, lawyers in the membership comment on it and send it back.

1.

(1) 2.

It doesnt become a rule unless its the CA sup ct that adopts it

5. 6.

Mandatory bar 1. To practice law in a jx you must be a member of the bar in that jx (1) CA has mandatory bar 2. Constitutionality of (1) Keller v CA (CA Bar lobbies and puts out political statements) (1) it is constitutional for the Bar to take a political position (2) if you dont agree w/ the Bars political position, apply for a refund of your dues that goes to the issue 3. Post-Keller Issues 1. CBPC 6140 states: the Conference of Delegates (reps of local bar associations) shall not be funded w/ mandatory fees collected by the State Bar 4. The State Bar and Rules of Ethics 1. The State Bar doesnt have the power to make ethical rules that are binding to CA lawyers 2. The proposed rule becomes binding only when its officially adopted by the Supreme Court or Legislature 3. Conducts proceedings when complaints against lawyers have been filed 4. Issues Opinions on ethical matters from time to time 5. The State Bar Courts 1. State Bar court made to alleviate cases from the courts of appeal (1) Not the final authority. Theres an appeal to the CA sup ct 2. Obrien v Jones (exec and legis branches appoint hearing judges in the State Bar Court) (1) benefits of a more diverse perspective achieved through non-judicial appointment of some hearing judges. Their appointments are subject to approval by the Supreme Court anyway The CA Legislature and the Regulation of Attorneys 1. Business and Prof Code 6000-6228 = State Bar Act The Scope of Ethical Regulation 1. Violation of a Rule of Professional Responsibility 1. MR 8.5 states: Disciplinary Authority - A lawyer admitted to practice in this jx is subject to the disciplinary authority of this jx, regardless of where the lawyers conduct occurs. A lawyer may be subject to the disciplinary authority of both this jx and another jx where the lawyer is admitted for the same conduct 2. CRPC 1-100(d) states: Geographic Scope of Rules - These rules shall govern the activities of members in and outside this state, except as members lawfully practicing outside this state may be specifically required by a jx in which they are practicing to follow rules of professional conduct different from these rules 3. R3d 52(2) states: The Standard of Care - Proof of a violation of a

2.

3.

rule or statute regulating the conduct of lawyers (a) doesnt give rise to an implied c/a for professional negligence or breach of fiduciary duty, (b) doesnt preclude other proof concerning the duty of care or fiduciary duty and (c) may be considered by a trier of fact as an aid in understanding and applying the standard to the extent the rule was designed for the protection of persons in the position of the claimant (1) Comment f states: A rule or statute that doesnt mention a damages remedy doesnt give rise to a c/a for lack of care or fiduciary duty 4. Hizey v Carpenter (bad legal advice about zoned property) (1) Majority: Neither CPR nor RPC set the standard of care so violations of the CPR or RPC do not give rise to an independent cause of action against the attorney 5. Mirabito v Liccardo (lawyer gave bad advice to cousin to invest in high tech) (1) CAPR not intended to create new civil c/a (2) You must have an independent c/a (breach of k or fiduciary duty) and then you can bring in the Rules (3) CA Minority: though they dont set the standard of care, the rules are relevant b/c they relate to the standard of conduct a lawyer must meet Conduct Not Expressly Prohibited 1. Stratmore v State Bar (law student lied about travel expenses to NY law firms) (1) Just because its not listed as prohibited, doesnt mean its allowed (2) Conduct before youre admitted can keep you out of the bar or once youre admitted, it can be the basis to punish you or throw you out (3) Theres no SOL for the State Bar, no matter what the offense Reporting Violations 1. MR 8.3 states: Reporting Professional Misconduct - a lawyer having knowledge that another lawyer has committed a violation of the RPC that raises a substantial question as to that lawyers honesty, trustworthiness or fitness as a lawyer in other respects,(or believes that a judge is unfit) shall inform the appropriate professional authority 2. CRPC 1-500(b) states: Agreements Restricting a Members Practice - A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules 3. R3d 5(3) states: Professional Discipline - A lawyer who knows of another lawyers violation of applicable rules of professional conduct raising a substantial question of the lawyers honesty or trustworthiness or the lawyers fitness as a lawyer in some other respect must report that information to appropriate disciplinary

4.

authorities (1) Comment i states: The rule applies to lawyers whether or not theyre in the same firm. Reporting to a senior is not enough unless you think hell report it to the proper authority 4. In CA there is NO affirmative ethical duty to report professional misconduct, whereas the ABA says that the failure to inform is an ethical violation in itself The ABA Model Rules in CA 1. The ABA rules dont establish disciplinary standards in CA 2. They have not been adopted in CA and have no legal force on their own, but may be considered as a collateral source, where theres no direct authority in CA and there is no conflict with the public policy of CA

PREVENTIVE POLICING 3. Admission standards 1. In re Francis Theodore Cano (found all the loopholes to get admitted to the bar) 1. A court is not a slave to literal interpretation of its local rules where injustice is the result 2. Court has the power to look at the meaning behind the words 2. Formal Requirements 1. R3d 2 states: Admission to Practice Law - In order to become a lawyer and qualify to practice law in a jx of admission, a prospective lawyer must comply w/ requirements of the jx relating to such matters as education, other demonstration of competence such as success in a bar examination, and character 2. Education 1. Most states require an undergraduate degree and have age requirement 2. CA (1) At least 18 years old and had at least two years of college work or intellectual ability equivalent 3. R3d 2, Comment c states: Most states require a minimum of an undergrad degree from an accredited college and a degree from an ABA accredited law school 4. CA recognizes exceptions for non accredited law schools (CBPC 6060e3) (1) if the student studied for 4 years at a law school that is authorized or approved to confer professional degrees and requires classroom attendance for at least 270 hrs/year (2) a foreign law school wherein English common law is not the basis of jurisprudence (3) in a law office in Ca under the personal supervision of a 5year active member of the State Bar of CA (4) in the chambers and under the personal supervision of a judge of a CA court of record and the judge makes reports (5) by instruction in law from a correspondence law school

3.

4.

5.

authorized or approved by CA to confer professional degrees, provided it requires 864 hrs/year (6) of by any combination of these methods 5. CA is one of 8 states to permit admission to the bar w/o first attending law school Bar Exam 1. R3d 2, Comment e states: You take bar courses and the bar exam to review a large sweep of legal subjects and legal rules, that you may not have covered in school 2. Most states and CA require passage of that states bar as a condition to practice law in that state 3. CA has no limit on how many times you can take it. The record was 48 by Maxcy Dean Filer Citizenship and Residence 1. R3d 2, Comment f states: Local residence and US citizenship may not be required as a condition of admission or continued membership; though some states have required an in-state office (1) SCUS held this criteria bears no reasonable relationship to the applicants ability or fitness to practice law 2. NH v Piper (Passed the bar in NH, but didnt live in NH) (1) NH restricts bar membership to residents b/c its important for lawyers to be familiar with and committed to upholding local interests 3. Martin v Davis (1) In KS, the say that a visiting attorney shall associate local counsel before he or she can appear in the courts or before boards or commissions (2) Non-residents are less available for many court procedures 4. Howard v Babcock (1) in CA its a big issue about whether legal pro should be seen as a business or a profession (1) businesses have restrictive covenants, trade secrets if you leave you cant practice in the area, or you cant use what youve learned from the company Reciprocity 1. R3d 2, Comment b states: There is no limit on how many jx a lawyer may practice in. Half the states allow reciprocity 2. If you pass the bar in one state and are in good standing, youll be admitted to another state bar on motion (i.e. you dont have to take the bar) 3. CA is in the majority of states which require an attorney licensed in another state to pass the CA bar exam as a condition for admission to the bar (1) However, the out of state attorney is only required to take a portion of the full bar examination (2) An applicants prior conduct while practicing law in another state can justify a state bar refusal of permission to take the bar exam in CA

3.

VA v Freidman (a woman DC resident was able to got admission to VA state bar by reciprocity) Substantive Requirements 1. Admissions Proceedings and Disciplinary Proceedings 1. In admissions, the burden is on the applicant to show moral fitness, whereas in disciplinary proceedings, the burden is on the state bar to rove that an attorney is morally unfit 2. Almost any evidence any be considered to determine the applicants character for honesty, integrity, and general morality 3. Moral turpitude is looked at for admission refusal (1) Factors: Fraud, dishonesty, cheating, promiscuity, immorality, gross antisocial conduct, inability to discharge his duties as an attorney like drunkenness or public brawling, and conduct for personal gain only 2. Good Moral Character 1. Good moral character is the CA standard in a disbarment case (1) To be sure he would not obstruct justice or be unscrupulous as an officer of the court (2) In evaluating good moral character they consider: (1) mental health (2) honesty and integrity (3) conduct of ones personal, business, and social life (4) and political beliefs (3) Three reasons for a good moral character requirement (1) shielding clients from potential abuses (misrep) (2) safeguarding the legal system from subversion (fraud) (3) maintaining and protecting a favorable image of lawyers 2. Mental Health (1) CA Competence Rule - you can be found guilty of malpractice once. Only if it happens again, can you be found incompetent (2) In the Matter of Robert T. Rowe (lawyer killed his wife and child and was disbarred) (1) Though he was not guilty of the crime by reason of mental disease, he is found unfit to be a lawyer (2) His reinstatement would clearly undermine public confidence and trust in the Bar and have adverse impact upon the publics perception of the integrity of the legal profession in view of his actions 1) the public looks at his acts, not his mentality 3. Honesty and Integrity (1) MR 8.1 states: Bar Admission and Disciplinary Matters An applicant for admission to the bar, or a lawyer in connection w/ a bar admission application or in connection w/ a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact

4.

4.

necessary to correct misapprehension known by the person to have arisen in the matter, or fail to respond to a lawful demand for info from an admissions or disciplinary authority (1) Comment states: The duty extends to persons seeking admission to the bar as well as to lawyers and the rule is subject to the 5th Amendment (2) CRPC Rule 1-200(A) states: False Statement Regarding Admission to the State Bar - A member shall not knowingly make a false statement regarding a material fact or knowingly fail to disclose a material fact in connection w/ an application for admission to the State Bar (1) Discussion states: Admission includes readmission (3) Law students not subject to the Model Rule, only applicants (4) CA - law students must register w/ the State Bar w/in three months of entering law school (5) Dishonesty in bar applications is taken more seriously than acts against applicants. If you are not sure, its better to state it on the application as a question rather than hoping they dont find out Criminal Conduct (1) Not every criminal violation will result in exclusion if the violation is: (1) not serious (2) not repeated or continuous and (3) not involved w/ deceit, dishonesty, or other character flaws making the person unfit to practice law (2) State Bar may consider acts you have been acquitted, pardoned, not charged, or for which charges have been dismissed as long as they (1) violate community moral standards (2) involve dishonesty or fraudulent conduct (3) involve economic dishonesty for personal gain (4) reflect adversely on your fitness to practice law (5) affect your potential duties as an officer of the court or as a fiduciary of the client, or (6) constitute concealment or failure to disclose relevant material to the State Bar (3) Litigiousness - fed and CA courts both have this concept. If person is deemed litigious, then that person becomes an outlaw. Outlaw is a person who is not entitled to the protection of the law. Open season on outlaws. (1) The ct will not look at cases that you file and you lose your first amendment right to petition grievances (4) Hallinan v Committe of Bar Examiners, the CA State Bar

3.

4.

5.

(lawyer participated in auto row sit-ins) (1) his civil disobedience didnt involve moral turpitude (2) although he says hes going to choose which rules to obey, the nature of his acts dont bear a direct relationship to his fitness to practice law 5. Social Conduct (1) All of your social conduct is available for scrutiny by the bar examiners (1) use of drugs, alcohol abuse, and financial irresponsibility (2) No recent CA cases hint at the cts attitude towards weed for social pleasure (1) in the past, growing weed for personal use was not considered an automatic rejection 6. Sexual conduct (1) Sexual orientation or living with someone are not relevant to the ability and fitness to practice law Political views 1. The burden can be placed on the applicant to show good moral character 2. Const rights limit the exercise of discretion by bar examiners and cts 3. Mere membership in an organization is not a sufficient basis for exclusion from the bar 4. State Bar cant require disclosure of all memberships and organizational affiliations; but they can maintain a list of certain organizations and may ask about them 5. State may inquire into all knowing memberships in subversive organizations or that preach the violent overthrow of the govt or other major crimes 6. State Bar cant force an applicant to prove his loyalty to the govt; but they can require that the applicant take an Oath supporting the Const and the laws 7. The State can deny admission to an applicant who obstructs the investigation, refuses to answer legit questions about knowing involvement in organizations, refuses to supply info not protected by privilege or confidentiality, or otherwise doesnt cooperate w/ the good moral character investigation Racial views 1. Baird v AZ (Hale wanted to work w/in the law as a lawyer to have all minorities deported) (1) The incitement of racial hatred for the ultimate purpose of depriving selected groups of their legal rights shows a gross deficiency in moral character, particularly for lawyers who have a special responsibility to uphold the rule of law for all persons Attorney Recommendations and Duty to Reveal 1. MR 8.1: see above

4.

5.

CRPC Rule 1-200(B) states: False Statement Regarding Admission to the State Bar - A member shall not further an application for admission to the State Bar of a person whom the member knows to be unqualified in respect to character, education, or other relevant attributes 3. CRPC Rule 1-200(C) states: False Statement Regarding Admission to the State Bar - This rule shall not prevent a member from serving as counsel of record for an applicant for admission to practice in proceedings related to such admission 4. R3d 5(3): see above 5. CA - Doesnt require you to disclose harmful info, but it requires you to not further assist the applicant (1) the duty to the client is superior to the duty to the bar 6. Neither CA nor the ABA apply to an attorney who is acting as the lawyer for a bar applicant b/c the attorney must act as an advocate for his client 7. Old ABA Code says you cant recommend someone you dont personally know. This has been deleted Admission to Federal Courts 1. Local Rule 2.1 states: An attorney cant appear before the district ct unless he is first admitted to the Bar of or permitted to practice before that court 2. Local Rule 2.2.1: An attorney not otherwise eligible for admission to the Central District Bar may nonetheless be granted permission to practice before the district ct, either on a pro hac vice basis or for the limited purpose of representing the US or its agencies, provided certain conditions are met 3. The US Supreme Court 1. Admission to the bar of the USSC requires good moral character, active practice for 5 years in some jx, the endorsement of two members of the Supreme Court bar, and the payment of a small fee 4. The Courts of Appeal 1. Sets its own admissions rules subject to the authority of the USSC 2. Admission on motion is generally allowed if you are a member in good standing of a district ct under the jx of that Ct of Appeals 5. The District Courts 1. Each is free to make its own admission rules subject to the authority of the USSC 2. Most require you to be a member of the state bar where its located Obligations Upon Admission 1. Attorneys Oath and Duties 1. MR 8.4 states: Misconduct - It is professional misconduct for a lawyer to: (a) violate or attempt to violate the RPC, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyers honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to

2.

6.

influence improperly a govt agency or official; or (f) knowingly assist a judge or judicial officer in conduct thats a violation of applicable rules of judicial conduct or other law (1) Comment states: Although a lawyer is personally answerable to the entire criminal law, a lawyer should be professionally answerable only for offenses that indicate lack of those characteristics relevant to law practice 2. CRPC Rule 1-120 states: Assisting, Soliciting, or Inducing Violations - A member shall not knowingly assist in, solicit, or induce any violation of these rules of the State Bar Act 3. CSBA 6067 states: Oath of Admission, Endorsement on Certificate - Every person admitted shall take an oath to support the US and CA state and to faithfully discharge the duties of an attorney to the best of his knowledge and ability 4. CSBA 6068 states: Duties of an Attorney - support the US and state const, respect the cts, maintain confidence, never reject a cause of the defenseless etc. 5. CSBA 6103 states: Disobedience of Ct Order; Violation of Oath or Attorney Duties - A wilful disobedience or violation of an order of the ct requiring him to do or forbear an act connected w/ or in the course of his profession, which he out in good faith to do or forbear, and any violation of the oath taken by him, or of his duties as such attorney, constitute causes for disbarment or suspension 6. CSBA 6106 states: Moral Turpitude, Dishonesty or Corruption Irrespective of Criminal Conviction - The commission of any act involving moral turpitude, dishonesty or corruption, whether the act is done in the course of his relations as an attorney or otherwise, and whether the act is a felony or misdemeanor or not, constitutes a cause for disbarment or suspension. If the act is a felony or misdemeanor, conviction thereof in a criminal proceeding is not a condition precedent to disbarment or suspension from practice therefor 7. CSBA 6106.1 states: Advocacy of Overthrow of Government Advocating the overthrow of the US govt or of this State by force, violence, or other unconst means, constitutes a cause of disbarment or suspension Readmission: Rehabilitation 1. CRPC Rule 1-200: see above 2. A CA member whose license to practice has been revoked after a disbarment hearing might still be able to return to practice after the passage of years 1. The applicant must be genuine in showing remorse 2. CA Sup Ct is currently reviewing a case raising the issue of what standard must be applied for an applicant for readmission to prove that he or she is now rehabilitated 3. Posthumous Readmission 1. In re Posthumous Readmission of Charles P Howard Sr (trying to get him reinstated after he had died)

(1)
4.

Though he was a champion of civil liberties, he was a lawyer w/ tragic human frailties who deserved disbarment, as he acknowledged by consenting to disbarment

Who May Practice Law? 1. The Authorized Practice of Law 1. What Constitutes the Practice of Law? 1. MR 5.5 Comment states: The definition of the practice of law is established by law and varies from one jx to another. Limiting it bar members protects the public against rendition of legal services by unqualified persons. You can employ paraprofessionals and delegate functions as long as you supervise and retain responsibility. Yo can give professional advice to nonlawyers whose employment requires knowledge of law (eg. Claims adjusters, social workers). Lawyers may counsel nonlawyers appearing pro se 2. R3d 4 Comment c states: Unauthorized Practice by a Nonlawyer A person not admitted to practice as a lawyer may not engage in the unauthorized practice of law, and a lawyer cant assist a person to do so 3. CA the State Bar negotiated treaties with associations representing accountants, banks, mortgage brokers, and others whose businesses require the exercise of legal judgments (1) Defined the areas within which nonlawyers could give advice w/o violating the unauthorized practice laws (2) Defined the areas in which licensed attorneys alone were permitted to practice 4. CA has no official definition of the practice of law 5. People ex re. Lawyers Institute of San Diego v Merchants Protective Corporation (organization founded to cut down legal costs for members) (1) The practice of law is not a lawful business for a corporation to engage in 6. The practice of law encompasses two distinct categories of activity (1) Representation of another before a ct or quasi-judicial tribunal or (2) Out of ct, the preparation for another of documents substantially affecting legal rights (except where blank forms are filled in), giving tax advice, giving estate planning advice, property advice or will-drafting advice 2. Who may Practice Law? 1. Active Members of the Bar (1) CRCP Rule 1-100(B)(1)-(4) states: Definitions - (1) Law Firm - 2+ lawyers whose activities constitute the practice of law and who share its profits, expenses and liabilities; (2) Member - a member of the CA State Bar; (3) Lawyer member of the CA State Bar or one whos in good standing of any US court; (4) Associate - an employee or fellow employee who is employed as a lawyer

(2)

2.

Voluntary inactive status (1) Active members arent continuing practice of law but dont want to give up membership or pay dues (2) If youre inactive, you cant practice. But you can reactivate you just have to pay what part of the bar dues are left (3) Costs a minimal amount to maintain the license, so you dont have to retake the bar (4) Trying to avoid involuntary inactive status (eg. drug problem) (3) Involuntary inactive status (1) Court throws you out of active status and they seize your practice and assigns your cases and clients to other lawyers (2) Can happen b/c of drug problems, mental illness, or failure to respond to a notice initiating a disciplinary hearing (4) Emeritus Attorney (1) Can request to retire from practice except for performing free legal services w/ a qualified legal service provider or a lawyer referral service Attorneys Admitted pro hac vice (1) R3d 3(2) states: Jxal Scope of the Practice of Law by a Lawyer - A lawyer currently admitted to practice in a jx may provide legal services to a client before a tribunal or administrative agency of another jx or the fed govt in compliance w/ requirements for temporary or regular admission to practice before that tribunal or agency (2) CA Rules of Court 983 states: Attorney in good standing is allowed to practice in another state on a temporary basis for the purpose of conducting a particular case if: (1) an active member of the CA State Bar is associated as an attorney of record (2) the attorney admitted pro hac vice is subject to CA court enforcement of rules governing the conduct of attorneys (3) the attorney is a member in good standing of another state bar (4) a verified written application is made to the court by motion, w/ proof of service on all interested parties (5) a fee not in excess of $50 if made to the State Bar (3) CA Rules of Court 983 states: Attorney cant have pro hac vice if: (1) is a resident of CA (2) is regularly employed in CA (3) is regularly engaged in substantial business, professional or other activities in CA (4) seeks repeated appearances pro hac vice and there

3.

are no special circumstances in justification of the repeated requests (4) Standard of CA Sup Ct (1) The ct said itd be an abuse of discretion unless the judge can come up w/ a reason why the client shouldnt be given the counsel of his choice (2) Not elevated to a constitutional right, but its a preference. All things being equal, youll protect the rights of the client to get the lawyer he wants (3) If just for one case, then its unduly harsh to not let you practice there. It would be wrong to deny the client his hand-picked lawyer - so it protects the clients interests (5) Sanders v Russell (1) Cant deny pro hac vice for the wrong reasons like denying the client counsel (6) Leis v Flynt (1) The judge w/o a hearing held that they werent going to get pro hac vice status and gave no reason why. Both lawyers were good. SCUS said it was a matter of local discretion so states can determine themselves the standards for giving phv status (7) People v Crovedi (1) Trial ct didnt allow lawyer b/c he was unknown to him. But it was Ramsey Clark, the attorney general of the US. So Clark was allowed into the case (8) Drumgo v Superior Court (1) An indigent s preference for a particular attorney, while it is to be considered by the trial court in making an appointment is not a determinative factor requiring the appointment of that attorney 1) its wholly w/in the discretion of the trial court Registered Foreign Legal Consultants (1) R3d 2, Comment g states: Foreign legal consultants are recognized and the particular law of each state governs the scope of their ability to practice law (2) Bluestien v State Bar of CA (lawyer in good standing from Spain wants to practice in CA dealing with people who have problems Spains law) (1) It doesnt matter what jx law youre practicing, youre still practicing so you must be a bar member (2) Repealed by CA Rules of Court 988, which states: A Consultant must agree (1) to abide by the prevailing rules concerning Foreign Legal Consultants, (2) to be subject to the laws of CA, (3) to be subject to the disciplinary jx of the CA State Bar and (4) to protect attorney-client privilege to the same extent as

4. 5.

6.

attorneys admitted to practice law in CA. Must also (1) show proof of admission to a foreign bar, w/ actual practice for four of the preceding six years and (2) good moral character (3) Rule 9.0 states: Foreign Legal Consultant may not (1) appear as attorney for another in any court, (2) prepare legal papers for another in any court, (3) prepare deeds, mortgages, or other documents involving real property, (4) prepare any will, trust or other document involving the administration of a decedents estate, (5) prepare any document involving marital relations or child custody or care, and (6) render professional legal advice o the law of CA or any other state or country other than the country in which the FLC is certified. The certificate must be renewed annually Out-of State Attorney Arbitration Counsel Professional Law Corporations (1) MR 5.4(d) states: Professional Independence of a Lawyer A lawyer shall not practice w/ or in the form of a professional corp or assoc authorized to practice law for a profit, if: (1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (2) a nonlawyer is a corporate director or officer thereof; or (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer (2) CRPC Rule 1-100(B)(5) states: Shareholder - a shareholder in a professional corporation pursuant to BPC 6160 (3) In CA, is a way of avoiding malpractice liability (1) You can buy a certain number of bonds and that substitutes for you being covered by malpractice insurance (4) Cappiello v Boyle (the PLC forgot to register w/ the state) (1) The professional law corporation forgot to register with the state (2) Since they technically didnt exist, they then did not exist in CA and therefore couldnt practice law 1) The contracts w/ their clients were void so there is no interference of contract (3) Risk of criminal liability, since k is void you cant collect fees on the k (4) CSBA 6161 states: Every law corp must apply to the State Bar for a certificate of registration, which must be renewed annually. W/o it, the corp is not entitled to practice law Suspended Lawyers (1) CRPC Rule 1-311 states: Employment of Disbarred,

7.

8.

9.

10.

Suspended, Resigned, or Involuntarily Inactive Member - A member shall not employ, associate professionally w/, or aid a person the member knows or reasonably should know is a disbarred, suspended, resigned, or involuntarily inactive member on behalf of the members client. A member may however if its restricted to research, drafting or clerical activities. (2) Dont want to keep the lawyer completely out of the loop b/c when they come out of suspension, they may be so far behind the law as to render them incompetent. But want to punish them enough so they dont misbehave again (3) Suspended lawyer cannot render legal advice to the client, but he can give legal advice to the active lawyer (4) Client and active must be given notice that the guy is suspended (5) Crawford v State Bar of CA (dad was recommended for disbarment but they were partners) (1) Dad kept practicing as a tax consultant and shared profits after he was disbarred (2) Dad acted independently of his son both in regard to matters involving legal advice, and to matters that can be characterized as such b/c performed in a law office, and that son merely had knowledge of the existence of them but not of their progress or disposition Government Lawyers (1) A govt lawyer who is licensed in one state may appear on behalf of the US in any court, even though the attorney isnt license in that state of federal court Lawyers Licensed in Federal Courts (1) CA cannot regulate the requirements for appearances before fed cts located in CA (2) McCue - whether a lawyer not licensed in CA may appear in a CA case to remove the case to a fed ct not located in CA. Because the appearance is in a CA ct, CA determines whether such appearances should require CA licenses (3) R3d says that fed district cts shouldnt have a requirement that lawyers have a licence to practice in the state where the ct sits Judges (1) Prohibits ct commissioners, judges, and county clerks from practicing law while they remain in the office (2) If youre a judge in CA, youre not entitled to practice law even though they are members of the bar (1) Exception - small claims court judges Certified Law Students (1) People v Perez ( appealed from conviction of second degree burglary and a certified law student acted under

11.

12.

supervision of a deputy public defender) (1) CA says that the student must be certified by the bar and in good standing in his or her second year at least 1) student may negotiate for the client subject to final approval by the supervising attorney, and may give legal advice to the client 2) can appear on behalf of the client in depositions and can prosecute minor criminal offenses with a max penalty or fine equal to the max fine for infractions in CA Group Legal Services Program (1) A group brings lawyers and clients together, lawyers charge less but make up the difference by way of volume (2) People ex rel. Lawyers Institute of San Diego v MPC (see above) The Right to Proceed Pro Se (representing yourself) (1) Co-counsel - attorney can handle any part of the trial requests and can take over the case if the gets disruptive and needs to be removed (1) Takes away the argument that he didnt have legal training and didnt know what was going on (2) Standby counsel - cannot give legal or other advice to the client and does not participate in the trial. But if the is removed, he can take over the representation and theres no automatic mistrial (3) Advisory counsel - assist the by giving legal advice and support but does not participate in the trial (4) If its a death penalty case, there automatically has to be a retrial (5) Faretta (1) If you let him represent himself, its gonna take forever b/c he has no legal education (2) If you let him represent himself and he is incompetent it has to be reversed (6) Barnum (He had no legal training and couldnt speak English) (1) The ct didnt think this was enough to be incompetent. You only have to have the competence to waive counsel not to represent yourself (7) People v Garcia ( waived his right to counsel and represented himself and was convicted of first degree murder) 1) A who exercises his right to represent himself cannot later complain that the quality of his defense amounted to a denial of the effective assistance of counsel

2.

The Unauthorized Practice of Law 1. Lawyers Practicing Law in Jxs Where they Are Not Licensed 1. MR 5.5(a) states: Unauthorized Practice of Law - A lawyer shall not practice law in a jx where doing so violates the regulation of the legal profession in that jx 2. CRPC Rule 1-300(B) states: Unauthorized Practice of Law - A member shall not practice law in a jx where to do so would be in violation of regulations of the profession in that jx 3. R3d 3(3) states: Jxal Scope of the Practice of Law by a Lawyer A lawyer currently admitted to practice in a jx may provide legal services to a client at a place w/in a jx in which the lawyer isnt admitted to the extent that the lawyers activities arise out of or are otherwise reasonably related to the lawyers practice 4. Birbrower, Montalbano, Condon & Frank (out of state lawyer in CA) (1) The law is clear that no one may recover compensation for any part of the services as an attorney in CA unless he was a member of the state bar at the time those services were performed (2) Practice of law entails sufficient contact with the CA client to render the nature of the legal service a clear legal representation (1) Fortuitous or attenuated contacts wont sustain a finding that the unlicenced lawyer practiced in CA (2) They decline to provide a comprehensive list of what activities constitute sufficient contact must be decided on a case by case basis (3) Competence in one jx does not guarantee competence in another (4) Four variables (1) Location/residence of client (2) Applicability of the law 1) CA or another state (3) Location/residence of the lawyer (4) Presence 1) Is presence actual or virtual 2) If you eliminate the presence requirement, then the other elements dont matter 3) You have to have enough to make it sufficient and they have to be the type to make it enough 4) Mere fortuitous or attenuated contacts will not sustain a finding that the unlicenced lawyer practice law in CA (5) CRCP 1282.4 states: If the legal counsel you want at an arbitration hearing is not of the CA bar, the a certificate must be filed with the CA bar. This is the pro hac vice rule again. The state bar isnt going to exercise discretion but

2.

simply accept the certificate (1) Must state the attorney is not a CA resident (2) is a member in good standing of another state bar (3) agrees to be subject to the jx of CA to the same extent as CA bar members (4) the name of the active member of the CA bar who is the attorney of record 5. Condon v McHenry (Katz prepare Condons will but he was not a member of the bar nor did he apply for pro hac vice) (1) Probate code makes specific allowance for a nonresident to serve as executor of a will subject to probate in CA. The executor has the right to choose independent counsel to perform the necessary legal services on behalf of the estate (2) Its insular to assume that only CA lawyers can be trained in CA law (3) In the very limited setting arbitration, this overrules Birbrower and only in that setting (not of much comfort) 6. In the Matter of George W. Murgatroyd (CA lawyers solicited in IN for clients from a plane crash and said they were IN lawyers) (1) Generally, the practice of targeted mail solicitations of prospective clients by lawyers is permitted, however, here IN didnt approve of the form and content (2) Court issued injunction to stop their solicitation (3) Shapero - permits targeted mailing Nonlawyers Practicing Law & Aiding and Abetting Non-Lawyers 1. MR 5.5(b) states: Unauthorized Practice of Law - A lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law 2. CRPC 1-300(A) states: Unauthorized Practice of Law - A member shall not aid any person or entity in the unauthorized practice of law 3. R3d 4 states: Unauthorized Practice by a Nonlawyer - A person not admitted to practice as a lawyer may not engage in the unauthorized practice of law, and a lawyer may not assist a person to do so 4. In re Carlos (non-attorney to negotiate on behalf of a creditor client) (1) Work of nonlawyers must be supervised by an attorney. If the work of the non-attorney employee of a law firm stands on its own, such work constitutes the unauthorized practice of law 5. Estate of Marks (assisted in preparing her will by her non-lawyer friends) (1) A lawyer preparing a will cannot have designated himself a beneficiary so the non-attorneys dont get what Marks wanted to leave them (2) The paramount duty of the ct is to give effect tot the

3.

4.

testators intent so the ct only voided the portions relating to the non-attorneys 6. People v Landlords Professional Services (eviction service offered to evict and sent in their counselor and gave advice) (1) They imply that their services were not limited to clerical functions unauthorized practice of law Lawyer Simultaneously Engaging in Another Business or Profession: Dual Practice 1. An attorney may be bound by legal ethics despite the fact that he may have been performing services under another professional license 2. In re Pappas (lawyer/CPA got accounting clients to invest then when it went bad, he denied any attorney-client relationship (1) can advertise both professions but that doesnt eliminate any ethical problems that remain in being in both professions (2) The absence of an articulated attorney-client relationship on a transaction doesnt preclude a finding that he was obligated to exercise his professional legal judgment on the clients behalf (3) Generally, theres no reason why a lawyer who is also a CPA or a psychologist or psychiatrist cannot practice both professions, especially if there is no overlap btw the two professional businesses 3. How is the client to know under which profession you are acting? Lawyers and Non-Lawyers in Business Together 1. MR Rule 5.4(b) states: Unauthorized Practice of Law - A lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law 2. CRPC Rule 1-310 states: Forming a Partnership w/ a Non-lawyer A member shall not form a partnership w/ a person who is not a lawyer if any of the activities of that partnership consist of the practice of law (1) Discussion: This is not intended to govern lawyer activities which cannot be considered to constitute the practice of law 3. R3d 10(1) and (2) state: Limitations on Nonlawyer Involvement in a Law Firm - A nonlawyer may not own any interest in a law firm, and a nonlawyer may not be empowered to or actually direct or control the professional activities of a lawyer in the firm. A lawyer may not form a partnership or other business enterprise w/ a nonlawyer if any of the activities of the enterprise consist of the practice of law 4. Experiment - the District of Columbia altered its rule in favor of lay partnerships in law firms ABA is monitoring the outcome (1) what they do in DC is allowed, but disallowed in CA. So partners that receive profits from both firms are okay from DC, but are violating CA rule of mixing legal and nonlegal

5.

6.

7.

Lawyers Splitting Fees With Nonlawyers 1. MR 5.4(a) states: Unauthorized Practice of Law - A lawyer shall not practice law in a jx where doing so violates the regulation of the legal profession in that jx (1) Comment: Protects the public from unqualified professionals. Does not prohibit giving professional advice to nonlawyers or delegating/supervising duties to nonlawyer 2. CSBA Rule1-320(A) states: Financial Arrangements w/ Nonlawyers - Neither a member nor a law firm shall directly or indirectly share legal fees w/ a person who is not a lawyer except that: (1) payment of money after the members death to the members estate or to specified persons(s); (2) when completing unfinished work of a deceased member they may pay the estate; (3) can include nonlawyer employees in a compensation, profitsharing, or retirement plan; or (4) a member may pay a prescribed registration, referral, or participation fee to a lawyer referral service established in accordance with the State Bar of CA 3. R3d 10(3) states: Limitations on Nonlawyer Involvement in a Law Firm - A lawyer or law firm may not share legal fees w/ a person not admitted to practice as a lawyer, except that: (a) payment to dead lawyers estate; (b) finishing a dead lawyers work you can pay his estate and (c) can include nonlawyers employees in a compensation or retirement plan, even though the plan is based in whole or in part on a profit-sharing arrangement 4. HMO model - is an example of professionals and nonprofessionals. Lawyers dont want that model b/c you have accountants deciding whether someone lives or dies. Its inconsistent with the notion of delivering responsibilities by a fiduciary Referral from one Lawyer to another Lawyer 1. CA has a forwarding fee or referral fee (1) You can send the case to another law firm, but the other firm has to agree to receive less money. The total bill cannot exceed the regular price if it had stayed at the original firm Ancillary Businesses and Lay Investors 1. MR 5.7 states: Responsibilities Regarding Law-Related Services (a) A lawyer wont be subject to the RPC w/ respect to the provision of law-related services if the law-related services are provided: (1) by the lawyer in circumstances that are not distinct from the lawyers provision of legal services to clients or (2) by a separate entity controlled by the lawyer individually or w/ others if the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist. (b) law related services are services that might reasonably be done in conjunction w/ and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice

8.

of law when provided by a nonlawyer 2. R3d 10: see above 3. Ancillary businesses provide legal clients w/ the combined expertise of many professionals in a one stop shopping package that can reduce the total cost of such services 4. Because they must be kept distinct, b/c they dont provide legal services, and b/c they dont interfere with the independent judgment of the lawyers, they do not violate the unauthorized practice of law rules 5. CA has remained silent about ancillary businesses but ABA Rule 5.7 (pg 233) - ancillary businesses raise confidentiality problems and water down lawyering (1) old rule prohibited all ancillary businesses unless under very specific circumstances (2) it lasted one year and was repealed of 190 to 183 (3) Now under the new rule 5.7 ancillary businesses are permitted as long as you (1) dual professions (in house model) - if its not clear at any given moment which profession you are being, then the client is at risk b/c he wont know when its confidential or not. There may also be higher billing (2) separate entity model - the client might not know what the separate distinction is. The policy is to make sure that the client is informed. As long as a nonlawyer can provide that same service, then it can qualify as an ancillary business 1) as long as the ancillary business is not giving legal services, its okay 6. Ancillary businesses were a good way for lawyers to maximize their services to clients 7. Arnold and Porter (1) Established outside businesses run by lay people who will do work and the lawyers get profit from those businesses. (2) Its not fee splitting b/c the ancillary businesses dont do legal work. They do estate planning, travel, whatever they can define as not being the practice of law (3) The law firms created these businesses and therefore own them and get the profit (1) the law firm can send business to the ancillary business (2) if people from the outside go to the ancillary business and they refer them to the law firm, this is seen as wrongful solicitation Lawyers Restricting the Practice of Law 1. R3d 13 states: Restrictions on the Right to Practice Law - In settling a client claim, a lawyer cant offer or enter into an agreement that restricts the right of the lawyer to practice law,

2.

3.

including the right to represent or take particular action on behalf of other clients Employment Opportunities (1) MR Rule 5.6(a) states: Restrictions on Right to Practice - A lawyer shall not participate in offering or making a partnership or employment agreement that restricts the right of a lawyer to practice after termination of the relationship except an agreement concerning benefits upon retirement (1) Comment: it non only limits their professional autonomy but also limits the freedom of clients to choose a lawyer (2) CRPC Rule 1-500 states: Agreements Restricting a Members Practice - (A) A member cant make an agreement, whether in connection w/ the settlement of a lawsuit or otherwise, if the agreement restricts the right of a member to practice law, except that this rule shall not prohibit such an agreement which (1) is a part of an employment, shareholders, or partnership agreement among members provided the restrictive agreement doesnt survive the termination of the employment, shareholder, or partnership relationship or (2) requires payments to a member upon the members retirement from the practice of law. (B) A member shall not be a party to or participate in offering or making an agreement which precludes the reporting of a violation of these rules (3) R3d 13(1) states: Restrictions on the Right to Practice Law - A lawyer cant enter into a law-firm agreement that restricts the right of the lawyer to practice law after terminating the relationship, except for a restriction incident to the lawyers retirement. (4) Howard v Babcock (agreement that firm would w/hold benefits from attorneys that left to start their own firm) (1) The restraint of competition among partners is ok only to the extent it protects the reasonable interests of the business seeking the restraint 1) thus an absolute ban on competition w/ the partnership would be per se unreasonable 2) lawyers may not inhibit competition by making the penalties for leaving so unreasonable as to deprive clients of their choice of counsel and render lawyers indentured servants Settlements (1) MR Rule 5.6(b) states: Restriction on Right to Practice - A lawyer shall not participate in offering or making an agreement in which a restriction on the lawyers right to practice is part of the settlement of a controversy between

(2) (3)

private parties CRPC Rule 1-500(A): see above R3d 13(2) states: Restrictions on the Right to Practice Law - In settling a client claim, a lawyer may not offer or enter into an agreement that restricts the right of the lawyer to practice law including the right to represent of take particular action on behalf of other clients

ESTABLISHING A LAW PRACTICE 5. Attracting and Accepting Clients 1. Law Firm Name Designations 1. MR 7.5 states: Firm Names and Letterheads - (a) lawyer shall not use a firm name, letterhead or other professional designation that violates rule 7.1. A trade name may be used by a lawyer in private practice if it doesnt imply a cxn w/ a govt agency or w/ a public or charitable legal services organize (b) A law firm w/ offices in more than one jx may use the same name in each jx, but identification of the lawyers in an office of the firm shall indicate the jx limitations on those not licensed to practice in the jx where the office is located (c) The name of a lawyer holding a public office shall not be use in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer isnt actively and regularly practicing w/ the firm (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact 1. Comment: A firm may be designated by the names of all or some of its members, by dead members if theres been continuing succession in the firms identity or by a trade name such as the ABC Legal Clinic. Lawyers sharing office facilities but who arent partners cant call themselves Smith and Jones b/c that implies partnership 2. MR 8.4(e) states: Misconduct - It is professional misconduct for a lawyer to state or imply an ability to influence improperly a govt agency or official 3. CRPC Rule 1-400(A)(1) states: Advertising and Solicitation - For purposes of this rule, communication means any message or offer made by or on behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client, including but not limited to any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm 1. Standard 6 violation: a communication in the form of a firm name, trade name, fictitious name, or other professional designation which states or implies a relationship btw any member in private practice and a govt agency or a public or non-profit legal services organization 2. Standard 7 violation: a communication which states or implies that a member has a relationship to any other member or a law firm as a partner or associate, or officer or shareholder pursuant to BPC

2.

6160-6172 unless such relationship in fact exists 3. Standard 8 violation: a communication which states or implies that a member or law firm is of counsel to another member or a law firm unless the former has a relationship w/ the latter (other than as a partner or associate, or officer of shareholder pursuant to BPC 6160-6172) which is close, personal, continuous, and regular 4. Standard 9 violation: a communication used by a member or law firm in private practice which differs materially from any other such designation used by such member or law firm at the same time in the same community 4. R3d 9(1) and (2) state: Law-Practice Organizations in General - (1) A lawyer may practice as a solo practitioner, as an employee of another lawyer or law firm, or as a member of a law firm constituted as a partnership, professional corporation, or similar entity (2) A lawyer employed by an entity described in (1) is subject to applicable law governing the creation, operation, management, and dissolution of the entity 5. Any name may be used so long as it does not misrepresent, confuse, deceive, mislead, or create unjustified expectations in the public Publicity and Advertising 1. The Traditional Rules of Etiquette 1. CSBA 6129 states: Buying Claim as Misdemeanor - Every attorney who, either directly or indirectly, buys any evidence of debt or thing in action, w/ intent to bring suit thereon, is guilty of a misdemeanor. Its punishable by imprisonment up to 6 mos, or a fine up to $2,500 or by both 2. Soliciting - publicity, advertising, solicitation (1) Publicity - news paper wants to do a story on you (2) Advertising - you call them tell them how good you are (tv, magazine, radio, flyers) (3) Solicitation - go out and stop people and tell them youre a lawyer and give your card. Self advertising 3. Rationale for anti-solicitation rules (1) it lowers the reputation of lawyers and the law (2) it turns the profession of the law into a common trade or business (3) facilitates the corruption of public officials (4) it causes disrespect for the law (5) encourages the misrepresentation of a lawyers abilities (6) it suggests an attorney has improper influence on cts (7) it stirs up litigation including much that is baseless or fraudulent (8) raises the cost of legal services, encourages lawyers to under-represent clients etc 4. Common law had anti-litigation bias (1) 3 common law crimes (1) Barratry - the practice of stirring up litigation 1) CA Penal Code 158 - exciting groundless

2.

judicial proceedings 2) CACO 159 - at least three times will lead to punishment. Using the legal process for harassing and annoying people (2) Champerty - bargain where a 3rd person has an interest in on-going litigation and so they continue the litigation 1) Contingent fees constitute an exception to the common law crime of champerty (3) Maintenance - like champerty but its the unauthorized interference in a suit in which the person has no interest by supplying money or other aid (2) Litigation is an evil that shouldnt be encouraged except by the parties involved (3) Advertising disliked (1) Debases the legal profession - it makes it like a fish market or car sales (2) Raised the cost of legal services b/c of the lawyers cost of advertisement (3) Harm to the solicited client 1) Overreaching - people pressured to sign up with lawyers (like in-person solicitation) 2) Overcharging - client business has to assume ad costs 3) Underrepresentation - once the lawyer gets the lawsuits, they wont have enough staff to handle it 4) Fraudulent claims and misrepresentations (4) Study - found that people like the general idea of advertising, but not the particular advertiser 1) The person on the commercial should not be the one going into court b/c seen as not professional (4) Anti publicity and advertising rules (1) 2101 -2103 Model rules go on and on about the bad effects of advertising. These are no longer valid Loopholes for permitting solicitation 1. ABA rules redrafted to allow solicitation for non fee paying clients 2. They can have a single line in the classified section of phone directory 3. Can freely solicit a close friend, relative and former client if the advice is germane to the former employment (1) Class distinctions had an impact on the rules (2) Advertising and soliciting - ABA code prohibited solicitation unless it was to friends, relatives, and former clients (1) Friends and relatives - if you grew up in a

3.

4.

5.

community where no one was a lawyer, then other lawyers couldnt solicit your business. If it was a community where there were lawyers, then there was no rules restricting it (3) Law lists - a book (eg. Attorneys Register). Publishers paid ABA for permission to publish this book that contains names and biographies of selected lawyers of prominence and firms of stature (1) Solo practitioners dont get into these lists, only major firms not fair (4) Friends - joining country clubs and taking a tax deduction for it and everyone you meet at the club is a friend so youre soliciting them tax free (1) Criminal lawyers and tort lawyers didnt really benefit 4. Can join a country club, get a tax write-off, and then solicit other members 5. Can be in bar sponsored or approved lawyer referral programs 6. Can attract clients for public interest 7. Can have their names and the nature of the practice included in officially sponsored law lists 1960's First amendment protects group legal services 1. Const protection in the right of people to assemble into organizations and advise one another concerning their legal rights 2. SCUS says the state cannot (1) Prohibit an organization from giving legal advice to its members (2) Prevent the organization from developing info regarding a case and turning that info, along w/ the name of injured members, to attorneys (3) Prohibit organization members from transporting injured members to the office of a lawyer and receiving compensation for time and out of pocket expenses (4) Prohibit the organization from negotiating lower attorney fees 1970's attacks on advertising restrictions 1. Shift toward allowing advertising 2. Button, Brotherhood, United Mine Workers, and United Transportation Union made it clear that the right to associate included the right to ban together to create group legal service plans even for commercial purposes, it was also clear that the right to associate included the right to exercise free expression by advertising Late 1970's The Right to Advertise 1. Millsberg (1) AROA distributed publications and stated that its members could get free legal advice from him (2) He was found to have solicited professional employment by

2.

3.

4.

5.

advertising by using the magazine to advertise his name, his skills and the fact that he was a member of the CA State Bar Bushman (1) Disseminated to the media a variety of laudatory statements about his ability and personal accomplishments as an attorney (2) His references to himself in laudatory terms as a specialist in various fields of law violated both the spirit and letter of rule 2 (1) A member of the state bar shall not solicit professional employment by advertisement or otherwise Valentine v Christensen (1) When the bar seeks to discipline an attorney for a communication incident to protected speech, in addition to showing that the attorney intended by his communication to generate business for his law practice, it must demonstrate that the communication or part thereof was principally directed toward this end (2) Violation of rule 2 would require a showing of either (1) The material about the attorney was principally directed at persuading the recipients to hire him in his capacity as an attorney (2) Or the material in the pamphlets was principally directed at generating lecture dates so that he could then procure clients from the lecture audiences (3) Mere wilfulness, either a desire to solicit business or substantial certainty that the ad would generate business, is the only state of mind the bar need have demonstrated Bates (1) Modern approach to advertising and solicitation (2) Constitutional analysis (1) Advertising by lawyers cant be subjected to a blanket suppression, but must be regulated only if it is deceptive or confusing (2) The term legal clinic is not deceptive or confusing (3) Advertising very reasonable prices is permissible if it is accurate (4) The ads dont have to state that some of the services performed, such as obtaining name changes, do not require a lawyer (5) And dignity cannot be a standard used by the bar to regulate lawyer ads (3) ABA now said that ads for routine legal services were now permissible in newspapers In re RMJ (1) Mailing professional announcement cards to persons other

6.

than lawyers, clients, former clients, personal friends, and relatives were permissible 6. Courts are split on lawyer access to police, govt, and other records from which lists of potential clients could be constructed (1) States have legitimate privacy interests and its regulation is reasonable 7. Jacoby and Meyers (1) Can cut costs to clients by streamlining (1) Hiring paralegals under the supervision of lawyers allows for routine tasks to be done cheaper (2) If they only do routine cases, they can develop procedures to handle those routine cases 1) paralegal filling out forms and the lawyer look it over (3) Meets demands of the middle class who cant afford more expensive attorneys 8. VA State Board Pharmacy (1) overruled Valentine (2) invalidate state rules prohibiting lawyers from advertising in newspapers and other media Regulating Content 1. MR 7.1 states: Communications Concerning a Lawyers Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyers services. A communication is false or misleading if it (a) contains a material misrep of fact or law, or omits a fact necessary to make the statement considered a s while not materially misleading; (b) is likely to create an unjustified expectation about results te lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the RPC or other law; or (c) compares the lawyers services w/ other lawyers services, unless the comparison can be factually substantiated (1) Comment: This governs all communications - whatever means are used to make known a lawyers services 2. MR 7.2 states: Advertising - (a) A lawyer may advertise services through public media, such as a phone or legal directory, newspaper or other periodical, outdoor advertising, radio or tv, or through written or recorded communication (b) A copy or recording of an ad or communication shall be kept for two years after its last dissemination along w/ a record of when and where it was used (c) A lawyer shall not give anything of value to a person for recommending the lawyers services except he may (1) pay the reasonable costs of ads permitted (2) pay the usual charges of a not-for-profit lawyer referral service or legal service org and (3) pay for a law practice (d) Any communication shall include the name of at least one lawyer responsible for its content 3. CRPC Rule 1-400(A)(2)-(4) state: Advertising and Solicitation (A) Communication means any message or offer made by or on

4.

5.

6.

behalf of a member concerning the availability for professional employment of a member or a law firm directed to any former, present, or prospective client including (2) any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers (3) any ad (regardless of medium) of such member or law firm directed to the general public or any substantial portion thereof (4) any unsolicited correspondence from a member or firm directed to any person or entity CRPC Rule 1-400(D) states: A communication or a solicitation shall not (1) contain any untrue statement or (2) contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public or (3) omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public or (4) fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be or (5) be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct (6) state that a member is a certified specialist unless the member holds a current certificate as a specialist CRPC Rule 1-400(E) states: The Board of Governors will adopt the standard which shall only be used as presumptions affecting the burned of proof in disciplinary proceedings. These are binding upon all members CRPC Rule 1-400(F) states: A member shall retain for two years a true and correct copy or recording of any communication made by written or electronic media. Upon written request, the member shall make such copy or recording available to the State Bar (1) Standard 5 violation: a communication except professional announcements, seeking professional employment for pecuniary gain, which is transmitted by mail (on envelope too) or equivalent means which doesnt bear the word Advertisement, or Newsletter or similar words in 12 pt print on the first page (2) Standard 12 violation: a communication, except professional announcements, in the form of an ad primarily directed to seeking professional employment primarily for pecuniary gain transmitted to the general public by mail or tv, radio, newspaper or magazine which does not state the name of the member responsible for the communication. If its for a law firm, it shall state the name of at least one member responsible for it (3) Standard 15 violation: a communication which states or implies that a member is able to provide legal services in a language other than English unless the member can actually do it or the communication also states in the language of the

7. 8.

9.

10.

11.

communication (a) the employment title of the person who speaks such language and (b) that the person isnt a member of the State Bar of CA, if thats the case CSBA 6157.1 states: No ad shall have false, misleading or deceptive statements or omit to any necessary fact to make the statements made not false, not misleading, and not deceptive Factual info in ads, such as name, date of birth, fees for routine legal services, fields of practice, offices held, articles or books published, military service, membership in professional and private organizations, degrees etc, is permitted Central Hudson says the govt may freely regulate commercial speech that concerns unlawful activity or that is false or misleading (1) Commercial speech that doesnt fall into those categories may be regulated if the govt satisfies a test (1) The speech involved in the case is commercial speech entitled to const protection (2) The govt can assert a substantial interest in support of its regulation limiting the speech (3) The govt can demonstrate that the restriction on commercial speech directly and materially advances that interest (4) The regulation must be narrowly drawn so that the extent of regulation is in reasonable proportion to the state interest served Dignity (1) regulation on the basis of dignity is impermissible (2) As long as its truthful, non deceptive, the ABA cant regulate it even if its of such low dignity Statements of quality (1) Better is more superior than best. Better is more comparative (2) To say that youve won 80% of cases creates unreasonable expectations in consumers (3) Mason v Florida Bar (Masons ad said he was AV Rated, the Highest Rating Martindale-Hubbel National aw Directory) (1) FL prohibits statements made by lawyers in ads or written communications that are self laudatory (2) His ad must include a full explanation as to the meaning of the AV rating so it doesnt mislead the public (3) Lawyer ads are constitutionally protected forms of speech, but can be regulated to protect the public (4) Central Hudson test 1) Whether the states interests in limiting the speech are substantial 2) Whether the challenged regulation advances these interests in a direct and material way

3) 12.

Whether the extent of the restriction on protected speech is in reasonable proportion to the interests served

7.

Statement of Costs (1) CRPC 1-400 Standard 14 violation: a communication which states or implies no fee w/o recovery unless such communication also expressly discloses whether t not the client will be liable for costs (1) Standard 16 violation: an unsolicited communication seeking primarily pecuniary gain which sets forth a specific fee or range of fees where in fact the member charges a greater fee than advertised w/in 90 days following the ad (2) Full disclosure is required 13. Statements of Results, Warranties or Guarantees (1) CRPC 1-400 Standard 1 violation: communication which contains guarantees, warranties, or predictions regarding the result of the representation (2) Any statement asserting an assured outcome or result is misleading 14. Client and Celebrity Endorsement (1) CRPC 1-400 Standard 2 violation: a communication which contains testimonials about or endorsements of a member unless such communication also contains an express disclaimer such as this testimonial or endorsement doesnt constitute a guarantee, warranty, or prediction regarding the outcome of your legal matter 15. Dramatizations (1) MR 7.2(a) and (b): see above (2) CRPC 1-400 Standard 13 violation: a communication which contains a dramatization unless such communication contains a disclaimer which states this is a dramatization or words of similar import 16. Fields of Practice, Specialization and Certification (1) MR 7.4 states: Communication of Fields of Practice - A lawyer may communicate the fact that he does or doesnt practice in particular fields of law. He shall not state or imply that he is a specialist in a particular field of law except (a) a lawyer admitted to engage in patent practice may use the designation Patent Attorney (b) a lawyer engaged in Admiralty practice may use Admiralty and (c) a lawyer may say that he has been certified as a specialist in a field of law by a named organization (2) CRPC 1-400(D)(6): see above Regulating Timing 1. Shapero - Targeted mailing was permissible (1) The first amend limits a states ability to dictate the form and content by which an attorney solicits legal business,

2.

and that regulatory interference w/ attorney advertising may not be permitted absent a showing that a substantial state interest would be served by such regulation (2) In CA and ABA has prohibited in person as solicitation (1400b2) (1) if you call it solicitation, youre already putting it in a category that is not protected even if true (2) if you call it advertisement, youre putting it in a category that is protected as long as its truthful (3) CA says its advertising, and the ABA would say its advertising (1) if its in person or on telephone its solicitation (2) the only distinction btw ABA and CA is if its robot telephone (3) since theres no telephone here, its clearly advertising under both so look at Bates and after (4) Lawyers argued that since it was truthful, its protected speech (1) the state bar says that even if its truthful, it can be restricted on the basis of another principle (essential vulnerability) (2) certain messages not delivered in person or on phone can be so intrusive or overreaching b/c of the vulnerability of the people that it contains the same evils that they look at to condemn solicitation In re ANIS (The day after his sons remains were identified from the Lockerbie terrorist plane crash, the dad got a letter of solicitation in the mail) (1) Was false and misleading ad b/c it failed to indicate fees and said they were experts in personal injury (2) RPC 7.3b1 is against direct solicitation of clients who are vulnerable and probably not able to make a reasoned judgment on their behalf (1) Its meant to prevent social harms such as harassment and overreaching (3) Ct shall not impose discipline for truthful letters of solicitation sent more than two weeks after such a disaster occurs and loss becomes known (4) Ravich, Koster, Tobin, Oleckna, (1) Evils of in-person solicitation for pecuniary gain after an accident include 1) Intrusion upon private grief 2) Tarnishment of the legal profession 3) The opportunity for fraud, undue influence, intimidation, overreaching, and other veracious conduct 4) The exertion of pressure w/ a demand for an immediate response, w/o giving an

3.

opportunity for comparison or reflection FL bar v Went for it (FL Bar prohibits personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster) (1) Give a reasonable time to prohibit the contact. Theyre not saying you cant do it, theyre just saying you cant do it until after 30 days (2) Protecting vulnerabilities (3) Gives any state bar the right to regulate advertising particularly direct targeted mailing under a specified time limit (1) drawback - if the contract is made after 30 days, its voidable after a certain amount of time. You can have parallel legislation that eliminates the enforceability of the contract when its been signed after such circumstances

3.

Solicitation 1. Direct Solicitation - In-person contact 1. MR 7.3 states: Direct Contact w/ Prospective Clients - A lawyer shall not by in-person or live telephone contact solicit professional employment from a prospective client w/ whom the lawyer has no family or prior professional relationship when a significant motive is for the lawyers pecuniary gain. (b) A lawyer shall not solicit from a prospective client by written or recorded communication or by in-person or telephone contact even when not otherwise prohibited if (1) the prospective client has made known to the lawyer a desire not to be solicited (2) the solicitation involves coercion, duress or harassment (c) Every written communication shall include the words Advertising Material on the outside envelope and at the beginning and ending of any recorded communication (d) a lawyer may participate w/ a prepaid or group legal service plan operated by an organization not owned by the lawyer which uses in-person or telephone contact to solicit memberships for the plan from persons who are not known to need legal services in a particular matter covered by the plan 2. CRPC 1-400(B) states: Solicitation means any communication: (1) Concerning the availability for professional employment of a member or a law firm in which a significant motive is pecuniary gain and (2) which is (a) delivered in person or by telephone or (b) directed by any means to a person known to the sender to be represented by counsel in a matter which is a subject of the communication 3. CRPC 1-400(C) states: A solicitation shall not be made by or on behalf of a member or firm to a prospective client w/ whom the member or firm has no family or prior professional relationship, unless the solicitation is protected by the US or CA Const (1) Standard 3 violation: A communication which is delivered to a potential client whom the member knows or should

2.

have known is in such a physical, emotional, or mental state that he would not be expected to exercise reasonable judgment as to the retention of counsel (2) Standard 4 violation: A communication which is transmitted at the scene of an accident or at or en route to a hospital, emergency care center, or other health care facility 4. Ohralik v State bar assn (Attorney visited accident victim in the hospital, she hired him and then revoked her consent and lawyer refused to withdraw) (1) State has a compelling interest to prevent overreaching, undue influence, fraud, intimidation, privacy, and conflicts of interest that divide the loyalty owed to a client (2) Things to consider (1) whether in-person solicitation for political, as opposed to commercial, purposes could be prohibited (2) whether direct phone contact could be prohibited 5. Norris v AL state bar (19 mo. old baby died when left in day care van and lawyer sent a wreath to funeral home w/ ad letter attached) (1) Disciplinary Rule 2-103 - lawyer cant solicit on behalf of his professional employment from a prospective client, when the motive is for his pecuniary gain. Solicit includes contact in person or by phone (2) DR 1-102 - a lawyer shall not engage in any other conduct that adversely reflects on his fitness to practice law (3) Norris knew that his conduct bordered on what was permissible and what is prohibited by the bar Indirect Solicitation: By Intermediaries 1. Lawyers prohibited from soliciting indirectly by lay persons as intermediaries who make the direct contact w/ potential clients 2. Runners and cappers (1) CSBA 6151 states: A Runner or Capper is any person, firm, association or corporation acting for consideration in any manner as an agent for an attorney or firm, whether the attorney is admitted in CA or any other jx, in the solicitation for the attorney or firm (2) CSBA 6152 states: Prohibition of Solicitation - Its unlawful for any person to act as a runner or capper for any attorneys or to solicit any business for any such attorneys in and about the prisons, jails, hospitals, courts or any public institution (3) CSBA 6153 states: Violations; Penalty - Any one acts as runners or cappers will be in jail not more than a year (4) CSBA 6154 states: Any contract for professional services secured by a runner or a capper is void (5) Where an attorney hires third parties to do the solicitation, its not protected by the 1st amendment (6) A lawyer that employs runners or cappers in the solicitation

3.

of business may be held criminally liable on a theory of aiding and abetting and may also be charged w/ conspiracy (7) Any govt employee who is found guilty under this section shall forfeit the right to his office and employment (8) Rubin v Green (Law firm solicited mobile home park residents as clients in anticipation of litigation against Rubin over park conditions and this is a normal pattern for them) (1) Common law barratry was the offense of frequently exciting and stirring up suits and quarrels and was punished as a misdemeanor Obtaining Referrals and Recommendations (1) Lay solicitation of attorney business is allowed (2) MR 7.2c: Advertising - Prohibits a lawyer from giving anything of value to someone in exchange for recommendations or referrals (1) Three exceptions 1) paying the reasonable costs of ads or communications permitted by the Rules 2) paying the usual charges of a no profit lawyer referral service or legal service organization 3) buying a law practice (3) CRPC 1-302(B) states: Financial Arrangements w/ Nonlawyers - Permits a gift in circumstances where it wouldnt be construed as a payment or a promise of further gifts for further recommendations (4) CRPC 1-302(C) states: Member shall not compensate, give, or promise anything of value to the press, radio, tv in anticipation of or in return for publicity of the member but the incidental provision of food or drink shall not be a violation (5) CRPC 1-400 Standard 10 violation: a communication which implies that the member or firm is participating in a lawyer referral service which has been certified by the CA Bar or as having satisfied the Minimum Standards of Lawyer Referral Services in CA, when that is not the case (6) CRPC 1-600 states: Legal Services Programs - A member shall not participate in a nongovt program recommending, or paying for legal services which allows any 3rd person to interfere w/ his professional judgment, client-lawyer privilege, or allows unlicenced persons to practice law (1) Discussion: participation in a MSLRSC-approved lawyer referral service is encouraged (7) CRPC 2-200(B) states: Financial Arrangements Among Lawyers - A member shall not compensate, give, or promise anything of value to any lawyer for the purpose of recommending or securing employment of the member or

6.

the members firm by a client, or as a reward for having made a recommendation resulting in employment of the member or his firm by a client (8) Can pay members of the media for favorable publicity (9) ABA Model Rules and the CRPC says that lawyers may participate in state approved Lawyer Referral Services 4. Class Action Solicitation (1) MR 7.2 Comment 4: Rule 7.2 and 7.3 dont apply to notice to members of a class action (2) A client can solicit potential new business for an attorney, but at the attorneys instigation 3. Soliciting Law Firm Clients 1. R3d 9(3) states: Law-Practice Organizations - Absent an agreement w/ the firm providing a more permissive rule, a lawyer leaving a law firm may solicit firm clients: (a) prior to leaving the firm (i) only w/ respect to firm clients on whose matters the lawyer is actively and substantially working (ii) only after the lawyer has adequately and timely informed the firm of the lawyers intent to contact firm clients for that purpose and (b) after ceasing employment in the firm, to the same extent as any other non-firm lawyer 2. Where associates in a law firm leave and form a partnership of their own 3. The client has a right to know of the availability of legal services and the attorney has a right to communicate truthful information about his or her availability Fees and Client Property 1. Fee Setting 1. General Principles 1. MR 1.5(a) states: Fees - A lawyers fee shall be reasonable. The factors to be considered in determining the reasonableness of a fee are (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly (2) the likelihood, if apparent to the client, that the acceptance of the employment will preclude other employment by the lawyer (3) the fee customarily charged in the locality for similar legal services (4) the amount involved and the results obtained (5) the time limitations imposed by the client or by the circumstances (6) the nature and length of the professional relationship w/ the client (7) the experience, reputation, and ability of the lawyer or lawyers performing the services and (8) whether the fee is fixed or contingent 2. MR 1.16(d) states: Declining/Terminating Representation - Upon termination of rep, a lawyer shall take steps to the extent reasonably practicable to protect a clients interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding any advance payment of

3.

4.

5.

6.

fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law CRPC 3-700(D)(2) states: Termination of Employment; Papers, Property, and Fees - A member whose employment has terminated shall promptly refund any part of a fee paid in advance that has not been earned. This is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter CRPC 4-200 states: Fees for Legal Services - (A) A member shall not enter into an agreement for, charge, or collect a illegal or unconscionable fee (B) Except where parties think the fee will be affected by later events, Unconscionability of a fee shall be determined by (1) the amount of the fee in proportion to the value of the services performed (2) the relative sophistication of the member and the client (3) the novelty and difficulty of the questions involved and the skill needed to perform the legal service properly (4) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the member (5) the amount involved and the results obtained (6) the time limitations imposed by the client or by the circumstances (7) the nature and length of the professional rel w/ the client (8) the experience, reputation, and ability of the member or members performing the services (9) whether the fee is fixed or contingent (10) the time and labor required, (11) the informed consent of the client to the fee (1) Compared to MR 1.5 (1) rejects inclusion of customary fees in the locality (2) added three more items for consideration: 1,2, 11 CSBA 6148 states: Contracts for services; bills - (a) where the expense will exceed $1000, the contract for services shall be in writing (and signed by both parties) stating any basis of compensation, the general nature of the services, and the responsibilities of the attorney and client (b) all bills shall clearly state the basis thereof (c)failure to comply renders the agreement voidable at the option of the client. (1) Failure to meet these requirements makes the contract voidable (2) This does not apply where (1) emergency rendition of legal services to protect rights of client where a writing is impractical (2) an implied arrangement on the same terms as services previously supplied to and paid for by the client (3) client,, in writing and after full disclosure, knowingly waives the written agreement (4) the client is a corporation CSBA 6149 states: Written Fee Contract: Confidential Communication - A written fee contract shall be deemed to be a

2.

3.

4.

confidential communication 7. R3d 34 states: Reasonable and Lawful Fees - A lawyer may not charge a fee larger than is reasonable in the circumstances or that is prohibited by law 8. Bushman v State Bar of CA (he charged $3000 b/c he was familiar with the opposing attorneys tactics) (1) you cant set your fees based solely on who the opposing counsel is 9. Ryan v Butera, Beausang, Cohen & Brennan (fixed fee $1 million) (1) the agreement was clear and unambiguous and was agreed upon fairly by sophisticated parties Fee Formalities 1. MR 1.5(b) states: Fees - When the lawyer hasnt regularly represented the client, the rate of the fee shall be communicated to the client, preferably in writing, before or w/in a reasonable time after commencing the representation (1) Comment 1: a copy of the lawyers usual fee schedule is sufficient (2) Comment 2: a lawyer may get advance payment(even proprietary interest), but must return any unearned portion (3) Comment 3: lawyer cant enter an agreement whose terms might induce him to improperly shorten his services or perform them in a way contrary to the clients interest Minimum Fee Schedules 1. ABA Opinions say that minimum fee schedules cannot be mandatory, but they also say that a practice of setting fees below the minimum can subject an attorney to discipline 2. Minimum fee schedules are unlawful price-fixing if they are (1) mandatory (2) or have the effect of creating uniform fees Contingent Fees 1. The ABA Model Rules and the Restatement Third (1) MR 1.5(c) states: Fees - A fee can be contingent on the outcome except where its prohibited by law. It shall be in writing and shall state the method by which the fee is to be determined (1) Comment: where there are better options for the client than a contingency fee, these options should be offered and explained to the client (2) MR 1.5(d) states: Fees - A lawyer shall not enter into an arrangement for, charge, or collect (1) any fee in a domestic relations matter, where the amount is contingent upon the securing of a divorce or upon the amount of alimony or support, or property settlement or (2) a contingent fee for representing a in a criminal case (3) MR 1.8(j)(2) states: Conflict of Interest: Prohibited Trxns A lawyer shall not acquire a proprietary interest in the c/a

2.

or subject matter of litigation, except that the lawyer may (1) acquire a lien granted by the law to secure the lawyers fee or expenses and (2) contract w/ a client for a reasonable contingent fee in a civil case (4) MR 3.4(b) states: Fairness to Opposing Party/Counsel - A lawyer shall not falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law (1) Comment 3: Its okay to pay a witnesss expenses or compensate an expert witness on terms permitted by law. Most jx say you cant pay an occurrence witness any fee for testifying nor can you pay an expert witness a contingent fee (5) R3d 35 states: Contingent Fee - A lawyer can have a fee contingent on the outcome except where the fee (a) is contingent on success in prosecuting or defending a criminal proceeding (b) is contingent on a specified result in a divorce proceeding or proceeding concerning child custody (2) Unless otherwise stated, the lawyer is entitled to get the fee only when and to the extent the client receives payment (1) Comment: Two situations where the cts will reject the contingent fees risk calculation 1) where the likelihood of recovery is very high and so the lawyer bears little risk of losing substantial recovery 2) the clients recovery is apt to be so large that the lawyers fee wold be disproportionately large compared to the services performed and the risk assumed The CA Rules (1) CSBA 6146 states: Limitations; Periodic Payments Attorney shall not get contingency fee in an action for injury against a health care provider for professional negligence in excess of the following limits: (1) 40% of the first $50K recovered (2) 33.3% of the next $50K (3) 25% of the next $500K, (4) 15% of any amount on which the recovery exceeds $600K. If periodic payments are rewarded, the ct shall place a total value on these payments based upon the projected life expectancy of the (2) CSBA 6147 states: Contingency Fee Contracts; Contents - At the time the k is entered, the lawyer shall give client a duplicate copy of the k, signed by both parties, in writing and shall include (1) a statement of the agreed upon contingency fee rate (2) statement how disbursements and costs incurred will affect the contingency fee and the clients recovery (3) statement as to what extent the client could be required to pay any extra compensation to the

3.

4.

lawyer (4) unless the claim is subject to 6146, a statement that the fee is not set by law but is negotiable btw them (5) if subject to 6146, a statement that the rates are the max limits for the contingency fee and they may negotiate a lower rate (1) Comment: Violation of this section renders the contract voidable by the client, who then must pay a reasonable fee to the attorney for services rendered (3) CSBA 6147.5 states: Recovery of Claims Btw Merchants 6147 doesnt apply to contingency fee contracts for recovery claims btw merchants if the merchant employs 10 or more individuals. Where theres no written contract, a lawyer may not (a)get more than 20% of the firs $300 (b) 18% of the next $1700, (c) 13% of sums collected in excess of $2000. The following minimum charges may be charged (a) $25 in collections of $75-$125 (b) 33.3% of collections less than $75 The Reverse Contingent Fee (1) The contingency rests on the amount saved the client, provided the amount saved is reasonably determinable, reasonable in amount under the circumstances, and the clients agreement to the fee arrangement is fully informed (2) ABA Formal Opinion 93-373 (1) The MR do not prohibit (2) the amount demanded cannot automatically be the number from which the savings is calculated since the usually overstates the amount Contingent Fees and Discharged or Negligent Counsel (1) R3d 37 states: Partial or Complete Forfeiture of Lawyers Compensation - A lawyer in clear and serious violation of duty to a client may be required to forfeit some or all of his compensation. Considered are gravity and timing of the violation, its willfulness, its effect on the value of the lawyers work for the client, any other threatened or actual harm to the client, and adequacy of other remedies (2) R3d 40 states: Fees on Termination - If the relationship ends before the lawyer has completed the services and the fees have not been forfeited under 37, a lawyer who w/draws or is discharged can get the lesser of the fair value of the services and the ratable proportion of the compensation provided by any other contract btw lawyer and client if (a) the discharge or w/drawal isnt attributable to misconduct of the lawyer (b) the lawyer has performed severable services (c) allowing contractual compensation wouldnt burned the clients choice of counsel or the clients ability to replace counsel (3) CA (1) When an attorney w/ a contingency fee is discharged

5.

6.

by the client, he is entitled to recover the reasonable value of the services rendered before his discharge measured on the basis of quantum meruit (2) the client has the right to discharge an attorney for any reason or no reason at all (3) whether quantum meruit recovery is barred should depend on the egregiousness of the particular conduct involved (4) Situations where lawyers may be required to w/draw (1) refusal by client to pay agreed-upon fees/expenses (2) unlawful client conduct (3) client demands you perform illegally or unprofessionally (4) client suing just to harass, and has no merit (5) client making you work w/ a lawyer you cant cooperate with (6) physical/mental incapacity of the lawyer (7) clients conduct that makes it unreasonably hard to do the work Contingent Fees and Litigation Support Services (1) Ojeda v Sharp Cabrillo Hospital ( hired a consulting service and a lawyer) (1) where the lawyer doesnt have the expertise, he must seek out others for assistance (2) lawyer may have to reduce his own fee so that the s fee doesnt become excessive Contingency Fees and Structured Settlements (1) CRPC 5-310(B) states: Prohibited Contact w/ Witnesses - A member shall not directly or indirectly pay, offer to pay, or pay compensation to a witness contingent upon the content of the witnesss testimony or the outcome of the case. Except where prohibited, a member may advance, guarantee, or acquiesce in the payment of (1) expenses reasonably incurred by a witness in attending or testifying (2) reasonable compensation to a witness for loss of time in attendance or testifying (3) a reasonable fee for the professional services of an expert witness (2) State Bar of CA Standing Committee on Professional Responsibility and Conduct Formal Opinion 1994-135 (1) when the settlement or judgment is not a single sum, but rather an periodic payment (2) CA Code of Civ Pro 667.7 states: The court shall place a total value on these payments based upon the projected life expectancy of the and include this amount in computing the total award from which attorneys fees are calculated

2.

Fee Splitting 1. With Non-Lawyers

1. 2. 3. 4.

2.

3.

MR 5.4(a): see above CRPC 1-320(A): see above R3d 10: see above General rule: its unethical practice to split fees w/ a nonlawyer. It discourages (1) the lay practice of law (2) lawyers/nonlawyers practicing together, which is unethical (3) solicitation by runners and cappers (4) lay interference w/ the independent judgment of lawyers (5) inexpert legal advice With Lawyers in the Firm 1. No ethical issues about how a firm divides its income among its members 2. MR 5.6 states: Fee split, though not based on responsibility, is a valid retirement benefit 3. R3d 47 Comment g states: Fees may be split w/ (1) former partners or associates under separation or retirement agreements and (2) members of a dissolved law firm for post-dissolution work on matters handled by the firm before it dissolved With Lawyers not in the Firm 1. MR 1.5(e) state: Fees - A division of fee btw lawyers who arent in the same firm may be made only if (1) the division is in proportion to the services performed by each lawyer, or by written agreement w/ the client, each lawyer assumes joint responsibility for the representation (2) the client is advised of and doesnt object to the participation of all the lawyers (3) the total fee is reasonable (1) Comment: the client doesnt have to know how much each gets 2. CRPC 2-200(A) states: Financial Arrangements Among Lawyers A member shall not divide a fee w/ a lawyer who is not a partner, associate or shareholder w/ the member unless: (1) the client has consented in writing after a full disclosure that sets the terms of the division (2) the total fee charged by all lawyers is not increased solely b/c of the division and is not unconscionable (1) an attorney can obtain a fee even though he does no work and assumes no responsibility for the case 3. R3d 47 states: Fee-Splitting btw Lawyers not in the Same Firm A division of fees btw lawyers who are not in the same firm may be made only if: (1)(a) the division is in proportion to the services performed by each lawyer (b) by agreement w/ the client, the lawyers assume joint responsibility for the representation (2) the client is informed of and doesnt object to the division, its terms, and the participation of the lawyers involved (3) the total fee is reasonable 4. CA (1) Unlike ABA and R3d, CA permits referral fees (2) Arguments favoring (1) discourages attorneys from taking cases theyre not

(2) (3) (4) 3.

competent to handle a ban hurts small firms who cant absorb a large caseload and who cant afford to turn them away w/o a fee lessen the rate of malpractice keeps general practitioners in touch w/ specialists, thus raising their knowledge level

Collecting the Fee 1. Attorneys Liens 1. MR 1.8(j)(1) states: Conflicts of Interest; Prohibited Transactions A lawyer shall not acquire a proprietary interest in the c/a or subject matter of litigation he is conducting, except the lawyer may acquire a lien granted by the law to secure his fee or expenses 2. R3d 43 states: Lawyer Liens - A lawyer may decline to deliver to a client any document prepared by him or at his expense if the client has not paid all fees and disbursements due for the lawyers work in preparing the document and nondelivery wouldnt unreasonably harm the client 3. Two types of liens allowed: charging and retaining 4. Charging Liens (specific, nonpossessory) (1) is an equitable interest for the lawyer in the ultimate recovery of the client (2) memorializes the debt owed by the client and gives the lawyer a preference over creditors who dont hold equitable security interests (3) does not exist at common law so must be created by contract (1) does not have to use the word lien (2) intent to use a charging lien must be clearly stated (3) the mere existence of a contingency fee contract doesnt create a lien (4) Weiss v Marcus (1) a charging lien does survive the discharge of an attorney by the client, but only to the extent of the reasonable value of the services rendered (2) if the former client is unsuccessful, there is nothing for the lien to operate on, so the discharged attorney gets nothing (3) the charging lien cannot be established until after the client is awarded a judgment or receives a settlement 5. Retaining Liens (general, possessory) (1) MR 1.16(d): see above (2) CPRC 3-700(D): see above (3) applies to papers and property coming into the hands of the attorney as an attorney for the client (4) CA Optometrists v Superior Court Sacramento (attorney w/held docs of no $ value when he was fired)

6.

In CA, a charging lien is authorized by statue in a few situations and may be freely contracted, but there is no such statutory or judicial authorization for a retaining lien (yet) (2) to enforce the lien would condone a violation of the ethical duties owed by a lawyer to his client. Contracts that violate professional ethics are void (5) catch 22 - the client cant pay the money for the file and thus cant win the case to get the money to pay for the file (6) Files being held (1) Working files (2) Work product 1) absolute work product in CA - lawyers theories and impressions in thinking about the case 1) CA Civ Pro 3-700 says it absolutely cannot be discovered by the other side 2) CA Civ Pro 3-400 says the client has the right to these files Security Interests (1) MR 1.5 Comment 2 states: The observance of the ethical obligation of a lawyer to hold inviolate confidential info of the client facilitates the full development of facts essential to proper representation of the client and encourages people to seek early legal assistance (2) MR 1.8(j): see above (3) CRPC 3-300 states: Avoiding Interests Adverse to a Client Member shall not enter into a business trxn w/ a client; or knowingly acquire an ownership or pecuniary interest adverse to a client, unless each of these has been satisfied: (a) the trxn and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client (b) the client is advised in writing that the client may seek the advice of an indep lawyer of the clients choice and is given a reasonable chance to seek that advice (c) the client thereafter consents in writing to the terms of the trxn or the terms of the acquisition (1) does not apply to where the member is retained by the client (2) does not apply where the member and client each make an investment on terms offered to the general public (3) does apply where the member wishes to obtain an interest in clients property in order to secure the amount of the members past due or future fees (4) R3d 36 states: Forbidden Client-Lawyer Financial

(1)

4.

Arrangements - (1) A lawyer may not acquire a proprietary interest in the c/a or subject matter of litigation hes conducting except the lawyer may (a) acquire a lien to secure the lawyers fee or expenses and (b) contract w/ a client for a contingent fee in a civil case (2) a lawyer can make a loan covering court costs and expenses of litigation, the repayment of which to the lawyer may be contingent on the outcome of the matter (5) Hawk v State Bar of CA (lawyer took a promissory note secured by a deed of trust in real property to secure fee payment) (1) cannot acquire interest thats contrary to the clients interest (6) Two types of situations (1) Is the subject matter of the litigation Ames 1) the attorney cannot have a security interest in it 2) Ames had good motives, yet was sanctioned for getting a security interest in it 1) the ethical thing to do was to let the client lose initially (2) Is not the subject matter of litigation Hawk 1) even though its an adverse conflicting interest where the lawyer can foreclose and cut off the clients rights, it can still be done as long as the requirements of the ethical rules are met 2) he didnt meet the CA rule requirements though 1) youre in a business relationship w/ the client since you have interest in his property (i) the agreement must be fair and reasonable to the client (ii) must be clearly explained to the client (iii) client must be told in writing that he should have an indep attorney look at the terms of the relationship 2) if its not in the business arrangement or security interest papers, the failure to put that clause in the k is a ethical violation and you cannot get around it (i) there is no defense - even if its been told to the client, the failure to tell the client to get outside lawyer to look at it is a violation Fee Disputes w/ Clients 1. Mandatory Arbitration

5.

6.

MR Rule 1.5 Comment 5: If a procedure has been established for resolution of fee disputes, such as arbitration or mediation, the lawyer should conscientiously consider submitting to it 2. CSBA 6200 states: Establishment of a System and Procedure; Arbitration and Mediation - The board of governors shall establish, maintain and administer a system and procedure for the arbitration and mediation of disputes concerning fees, costs, or both, charged for professional services by members of the state bar (1) policy: to alleviate the disparity in bargaining power in attorney fee matters which favors the attorney by providing an effective, inexpensive remedy to a client which doesnt necessitate the hiring of a second attorney (2) mediation is voluntary for the attorney and the client (3) unless the client agreed in writing to mandatory arbitration, it is voluntary for the client but mandatory for the attorney (4) they may agree to be bound by the arbitration decision, or they may apply for a trial after the decision 3. R3d 42 states: Remedies and B/P - (1) A fee dispute btw lawyer and client may be adjudicated in any appropriate proceeding, including a suit by the lawyer to recover an unpaid fee, a suit for a refund by a client, an arbitration to which both parties consent unless applicable law renders the lawyers consent unnecessary, or in the cts discretion a proceeding ancillary to a pending suit (2) The lawyer has the burden of persuading the trier of fact of the existence and terms of any fee contract, the making of any disclosures to the client required to render a contract enforceable, and the extent and value of the lawyers services 2. Suing Client for Fees 1. Not recommended b/c it reflects poorly on the lawyer 2. Can be countersued for malpractice or unreasonable fees and disciplinary fees can be charged against you 3. Collection Methods 1. R3d 41 states: Fee Collection Methods - In seeking compensation from a client or former client, a lawyer may not employ collection methods forbidden by law, use confidential info when not permitted, or harass a client 2. Bluestein v State Bar of CA (lawyer threaten criminal charges to collect payment for services in civil matter) (1) this is extortion tactics Fee Disputes with the Government 1. Fee Forfeiture - no person can use the money they stole from other people to pay for an attorney of his choice 2. Reporting Cash Fees - if you get more than $10,000 in cash you have to report it to the IRS Duty to Safeguard Clients Property and Funds 1. MR 1.15 states: Safekeeping Property - A lawyer shall hold property of clients that is in a lawyers possession in cxn w/ a representation separate from the lawyers own property, in a separate account in the same state

1.

2. 3. 4.

5. 6.

7.

8.

9.

when the lawyers office is located and a complete record thereof MR 1.16(d) Comment 9: Even if the lawyer is unfairly discharged by the client, a lawyer must take all reasonable steps to mitigate the consequences to the client CRPC 3-700(D): see above CRPC 4-100(B) states: Preserving Identity of Client Funds/Property - A member shall (1) promptly notify a client of the receipt of the clients funds, securities, or other properties (2) identify and label securities of a client upon receipt and place them in a safe deposit box or other place of safekeeping as soon as practicable (3) maintain complete records of all funds, securities, and other properties (4)promptly pay or deliver, as requested by the client, any funds, securities, or other properties in possession of the member which the client is entitled to receive CRPC 4-100(C) states: The Board of Govs have the authority to adopt standards as to what records shall be maintained by members R3d 45 states: Surrendering Possession of Property - (1) A lawyer must promptly deliver, to the client funds or other property in the lawyers possession belonging to a client. (2) A lawyer may retain possession of funds or property if (a) the client consents (b) the client is entitled to the property, the lawyer possesses the property for purposes of the representation, and the client has not asked for delivery of it (c) the lawyer has a valid lien on the property (d) there are substantial grounds for dispute as to the person entitled to the property (e) delivering the property to the client would violate a court order or other legal obligation of the lawyer R3d 46 states: Documents Relating to a Representation - (1) A lawyer must take reasonable steps to safeguard docs in his possession relating to the representation of a client (2) on request a lawyer must allow a client to inspect and copy any doc relating to the representation, unless substantial grounds exist to refuse (3) unless a client consents to non-delivery or substantial grounds exist for refusing, a lawyer must deliver to the client at an appropriate time and promptly after the representation ends, such originals and copies (4) a lawyer may decline to deliver to a client an original or copy of any doc under circumstances permitted by 43 Liens Cleveland Bar Association v Belock (lawyer used client funds when in hiding from the mob) 1. No circumstances ever justify the deliberate misappropriation of clients funds for a lawyers personal benefit Commingling 1. CRPC 4-100(A) states: All funds held for the client by a lawyer, including advances for costs, and expenses, shall be deposited in a bank account labeled Trust Accountor similar, maintained in CA, or w/ written consent of the client, in any other jx where there is a substantial relationship btw the client and that jx. No funds belonging to the member shall be deposited therein or otherwise commingled except (1) funds reasonably sufficient to pay bank charges (2) in the case of funds belonging to a client in part AND the lawyer in part, the members part must be w/drawn at the

2.

3.

earliest reasonable time after the members interest in that portion becomes fixe. When the right of the member to receive a portion of trust funds is disputed by the client, the disputed portion shall not be w/drawn until the dispute is finally resolved R3d 44 states: Safeguarding and Segregating Property - A lawyer holding funds of a client in cxn w/ a representation must take reasonable steps to safeguard the funds. The lawyer must hold it separate from his property, keep records of it, deposit funds in an account separate from his own, identify tangible objects, and comply w/ related requirements imposed by regulatory authorities. Upon receiving funds, he must promptly notify the client Stevens v State Bar of CA (lawyer deposited $ into his business account instead of the clients trust account) (1) must have separate business account and client account (2) Combining them is one of the most serious ethical offenses and most harshly punished

10.

11.

IOLTA 1. Interest on Lawyers Trust Account program - the interest earned on the client trust accounts finance legal services for poor people 2. Phillips v WA Legal Foundation (1) Since its all client money in the client account, the clients are entitled to the interest (2) The issue has not been resolved. The state doesnt have the right to claim the interest, but they have the right to say how its dispersed Client Security Fund 1. Part of bar dues and disperses the money according to the persuasiveness of the clients case 2. If you abscond or leave the client destitute or take their money, this fund will reimburse client victims of lawyer misconduct 3. Does not compensate for malpractice or fee claims, but only for money lost by the attorneys criminal or wilful conduct

THE ATTORNEY-CLIENT RELATIONSHIP 7. The Duty of Competence and Care 1. Ethical Duty of Competence 1. MR 1.1 states: Competence - A lawyer shall provide competent representation to a client which requires the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation 2. CRPC 3-110 states: Failing to Act Competently - (a) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services w/ competence (b) competence means to apply (1) diligence, (2) learning and skill, (3) and mental, emotional and physical ability reasonably necessary for the performance of such service (c) If a member doesnt have sufficient learning and skill the member may perform such service competently by (1) associating w/ or professionally consulting another lawyer reasonably believed to be competent, or (2) by acquiring sufficient learning and skill before performance is required

2.

Discussion: Duty to supervise the work of a subordinate attorney and nonlawyer employees. A lawyer may give advice when he doesnt have the skill in an emergency 2. A single act of negligence is non-actionable 3. R3d 16 states: Lawyers Duties to a Client - A lawyer must (1) proceed in a manner reasonably calculated to advance a clients lawful objectives (2) act w/ reasonable competence and diligence (3) comply w/ obligations concerning the clients confidences and property, avoid conflicting interests, deal honestly w/ the client, and not use advantages arising from the client-lawyer relationship in a manner adverse to the client and (4) fulfill valid contractual obligations to the client 4. The relationship is contractual and there is an assumption of duty of due care 5. If its a criminal , the lawyer has a responsibility under the 6th amend to give effective assistance of counsel 6. Mandatory Continuing Legal Education (MCLE) 1. The rule, requires all active members of the bar, to complete 36 hours of approved legal education w/in 36 month periods designated by the bar (1) at least eight must be in either legal ethics or law practice management (2) no fewer than four of the eight must address legal ethics (3) none of the required hours needs to be in the attorneys area of practice 2. Exemptions from MCLE requirements ( 6070 and rule 958) (1) Retired judges (2) Officers and elected officials of the CA (3) Full-time professors at accredited law schools (4) Full-time employees of CA (5) Full time federal employees 3. Warden (1) Jan 1, 2000 amendments to BPC reduced the number of required MCLE hours from 36 to 25 in a three year period of time (1) eliminated the exemption for retired judges (2) By 1999, the total number of states w/ MCLE programs rose to 40 Duty of Diligence 1. MR 1.3 states: Diligence - A lawyer shall act w/ reasonable diligence and promptness in representing a client 2. R3d 52(1) states: Standard of Care - A lawyer who owes a duty of care must exercise the competence and diligence normally exercised by lawyers in similar circumstances 1. Comment c: Diligence includes an inquiry into the facts, analysis of law, exercise of professional judgment, communication w/ the client, rendering of practical and ethical advice, and drafting of documents 3. Should not take on caseloads that prevent them from giving full

1.

3.

4.

consideration to each client 4. The duty may be violated even though the client ultimately suffers no prejudice or legal loss 5. The duty may not be avoided by delegating responsibility for some tasks to others Duty to Communicate 1. MR 1.4 states: Communication - (1) a lawyer shall keep a client reasonably informed about the status of a matter and promptly comply w/ reasonable requests for info (b) and shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions 1. Comment: Clients can be denied info, at least for some period of time, if getting the info would have a serious adverse effect and led to serious setbacks 2. CRPC 3-500 states: Communication - A member shall keep a client reasonably informed about relevant developments, including promptly complying w/ reasonable requests for info and copies of significant docs when necessary to keep the client informed 3. R3d 30 states: Lawyers Liability to a 3d Person for Conduct on Behalf of a Client - Unless disclaimed at the time of contracting, a lawyer is subject to liability to 3rd persons in contracts the lawyer entered into on behalf of a client if (a) the clients existence or identity was not disclosed to the 3rd person (b) the k is btw the lawyer and a 3rd person who provides goods used by lawyers and who, as the lawyer knows or should know, relies on the lawyers credit. The lawyer is liable to 3rd party for damages proximately caused by lawyers acting w/o authority from client if the lawyer (a) tortiously misrepresents to the 3rd party that he had the authority to make a k 4. R3d 31 states: Termination of a Lawyers Authority - (1) A lawyer must give notice when terminating representation (2) a lawyers actual authority to represent a client ends when (a) client discharges him (b) the client dies, or the corporation loses its capacity to fxn (c) the lawyer w/draws (d) the lawyer dies or becomes physically or mentally incapable, is disbarred or suspended, or is ordered to cease representing a client (e) the representation ends as provided by k or b/c the lawyer has completed the contemplated services (3) A lawyers authority to act for a client w/ respect to another person ends when the other person knows facts from which it can be reasonably inferred that the lawyer lacks actual authority 5. Settlement Offers 1. CRPC 3-510 states: Communication of Settlement Offer - (A) Member shall promptly communicate to the members client (1) all terms and conditions of any offer made to the client in a criminal matter and (2) all amounts, terms, and conditions of any written offer of settlement made to the client in all other matters (1) Discussion: In criminal matter he must disclose all offers whether written or oral. In civil matters, he must disclose any oral offers if they are significant Malpractice 1. Civil Cases - Elements for a Cause of Action

1.

2.

3. 4.

5.

6.

7.

R3d 70 states: A/C Privilege; Privileged person - are the client (including prospective), the clients lawyer, agents of either who facilitate communications btw them, and agents of the lawyer who facilitate the representation R3d 71 states: A/C Privilege; In Confidence - if at the time and in the circumstances of the communication, the person reasonably believes that no one will learn the contents of the communication except a privileged person or w/ another person w/ whom communications are protected under similar privilege R3d 74 states: Privilege for a Govt Client - a/c privilege extends to a communication of a govt org and of an indiv employee or other agent of a govt org as a client w/ respect to his personal interest R3d 75 states: Privilege of Co-clients - If two or more people are jointly represented by the same lawyer, a communication of either co-client is privileged as against 3rd persons, and any co-client may invoke the privilege, unless it has been waived by the client who made the communication (2) unless co-clients have agreed otherwise, a communication is not privileged as btw the col-clients in a subsequent adverse proceeding btw them R3d 76 states: Privilege of Common-interest Arrangements - If two or more clients w/ a common interest in a matter are represented by separate lawyers and they agree to exchange info, a communication of any such client is privileged as against 3rd persons. Any such client may invoke the privilege, unless it has been waived by the client who made the communication (2) Unless the clients have agreed otherwise, a communication is not privileged as btw clients in a subsequent adverse proceeding btw them Subset of malpractice (1) Occurring in the context of representing criminal s (1) if youre charged w/ murder and lawyer fails to intro motions to suppress any of the evidence or testimony. (2) you argue malpractice: but for the lawyers failure to file those motions, i wouldnt have been convicted. A reasonable lawyer wouldve done it (2) Criminal malpractice (1) Can get a money judgment against the lawyer (3) Ineffective assistance of counsel (1) 6th amendment constitutional issue that lets the client have the conviction reversed Competence (1) Before, if you were sued for incompetence, you could defend yourself by showing that you were truly dumb (1) It was a subjective standard of proof and you didnt have to compare yourself to a reasonable attorney (2) Model Rule 1.1 - competent representation requires legal knowledge .... reasonably necessary

2.

3.

CA Shall not intentionally, recklessly fail to perform w/o competence (1) Youre not incompetent if you blow it out of negligence one time, but you are if you do it another 8. Lucas v Hamm (beneficiaries sue the lawyer who prepared the will b/c he used wrong phraseology and caused them to lost money) (1) The lack of privity btw s and s doesnt preclude s from maintaining an action in tort against (1) They are entitled to recover as third party beneficiaries (attorney liable to non-client) (2) However, The CA law on perpetuities is so confusing that most anyone would get it wrong there is no c/a 9. Smith v Lewis (lawyer negligently failed in the divorce action to assert her community interest in the husbands retirement benefits) (1) The lawyer assumes an obligation to his client to undertake reasonable research (2) By undertaking representation of , lawyer assumed the duty to familiarize himself w/ the law (3) The violation of the ethical duty of diligence is actionable as malpractice 10. Jones Motor Company v Holtkamp ( lawyers negligently failed to make a timely effective request for a jury b/c didnt pay fee) (1) whether the loss of a procedural advantage cannot give rise to a malpractice suit b/c the advantage was not essential to the protection of the clients substantive rights. He wouldve lost anyway (2) Cline v Watkins - A negligent lawyer isnt relieved of his responsibility because he is replaced by another lawyer Civil Cases - Contribution & Equitable Indemnity 1. Indemnity was not available at common law 2. The two parties are jointly and severally liable to the 3. The passive party can shift the entire burden of loss incurred by settlement or judgment to the active tortfeasor Civil Cases - Assignment 1. Goodley v Wank and Wank (1) Common law: If a client has a c/a against a lawyer, that c/a cannot be sold or assigned (2) Legislature last century: reversed the common law rule and made most of the c/a assignable (3) Does the common law rule or statutory rule apply to lawyers (1) The statutory rule applies and thus are not assignable. This would be champerty (2) Some states do permit c/a against lawyers to be assigned 2. Voluntary assignment (1) Client deliberately sells off the asset of the lawsuit to get some advantage, usually money

(3)

4.

Where one enterprise buys out the assets of another enterprise (1) If a company has a potential lawsuit against a law firm. Can that suit be part of the transferable assets? (2) Voluntary b/c the company wants to sell it (3) Exception: this is permitted 3. Involuntary assignment (1) Although the client has the asset of the lawsuit, he has not expressed the want to present it, but loses the opportunity to bring it b/c its been involuntarily transferred (2) Snow, Nuffer, Engstron v Tanasse (1) The c/a against the law firm was purchased by the law firm at an execution sale, where the law firm gets to put the value on the case themselves (2) Client owes the law firm money, but the firm messed up in their advocacy. The value of the legal malpractice action is crucial. Usually the value is determined by a jury. When the assets are sold in an execution sale, the firm buys the lawsuit against itself. (3) UT Sup Ct asks 1) whether legal malpractice actions are assignable in UT court avoided the question by saying that it was involuntary assignment 2) whether there can be an involuntary transfer 1) yes b/c its an asset capable of valuation that creditors have access to. 2) the court permits involuntary transfers 3) if involuntary transfers are allowed, do you allow the person who the action is against to purchase it as an involuntary transfer (i.e. law firm? 1) as a matter of public policy, law firms are not allowed to buy off suits against them b/c theyll devalue it at a very low amount 4. The assignment rules are not uniform across the country and CA has not adopted any of the exceptions from the Goodley case Civil Cases - Obligations to Third Parties (non-clients) 1. R3d 42: see above 2. R3d 77 states: Duration of Privilege - Unless waived or subject to exception, the a/c privilege may be invoked at any time during or after the relationship btw client or prospective client and lawyer 3. R3d 78 states: Agreement, Disclaimer, or Failure to Object - An a/c privilege is waived if the client, the lawyer, or another

(2)

5.

authorized agent of the lawyer (1) agrees to waive the privilege (2) disclaims protection of the privilege and (a) another person reasonably relies on the disclaimer to his detriment (b) or reasons of judicial admin require that the client not be permitted to revoke the disclaimer or (3) in a proceeding before a tribunal, fails to object properly to an attempt by another person to give or exact testimony or other evidence of a privileged communication 4. Negligence (1) Mason v Levy (original lawyer replaced by new ones who lost b/c of negligently letting the SOL run) (1) the s owed no duty to lawyer to prosecute the case in any particular manner; the duties are owed to the client (2) both sets of lawyers were negligent, but equitable indemnity is not allowed so there can be no shift in blame. The may recover 100% from either party, but the s cannot divide up the amount btw them (3) even if the lawyers represented the concurrently, they still have no equitable indemnity b/c their duty is to the client, not to one another (2) R3d says theres four situations where a duty to use due care may be extended to non-clients (1) 51(1) - prospective client - duty of care owed particularly the obligation to maintain confidences and the duty to avoid accepting adverse employment (2) 51(2) - duty of care where the lawyers conduct has invited or induced reliance by the non-client on the lawyers opinion or provision of other legal services (3) 51(3) - intended beneficiaries of the lawyers work for the client. When the primary objective of the representation of the client is to confer a benefit upon the non-client (4) 51(4) - to beneficiaries when an attorney represents a fiduciary as a client Criminal Malpractice 1. Wiley v County of San Diego (was convicted of battery and claims that he had ineffective counsel) (1) In civil malpractice cases he elements for a c/a for professional negligence are (1) The duty of the lawyer to use such skill, prudence and diligence as members of the profession commonly posses (2) A breach of that duty (3) A proximate causal connection btw the breach and the resulting injury (4) Actual loss of damage (2) In criminal malpractice cases, the clear majority of cts also

(3) (4) 5.

require proof of actual innocence as an additional element (1) you can be clearly negligent and yet not be answerable to the client Allowing a convicted criminal to sue is like letting him profit from his own wrongdoing Problem: you only let someone innocent sue, but the reason theyre suing is b/c they were found guilty due to ineffective counsel

6.

Supervision 1. Supervisory Lawyers 1. MR 5.1 states: Responsibilities of a Partner or Supervisory Lawyer - (a) a partner in a firm shall make reasonable efforts to ensure that the firm has measures giving reasonable assurance that all lawyers in the firm conform to the RPC (b) a lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the RPC (c) A lawyer shall be responsible for another lawyers violation (vicarious liability) of the RPC if (1) the lawyer orders or, w/ knowledge of the specific conduct, ratifies the conduct involved or (2) the lawyer is a partner in the same firm, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can e avoided or mitigated but fails to take reasonable remedial action 2. R3d 12 states: Duty of a Lawyer Subject to Supervision - (1) A lawyer must conform to the requirements of an applicable lawyer code even if the lawyer acted at the direction of another lawyer or other person (2) A lawyer under the direct supervisory authority of another lawyer doesnt violate an applicable lawyer code by acting in accordance w/ the supervisory lawyers direction based on a reasonable resolution of an arguable question of professional duty 3. CA has no equivalent set of rules, but most likely adopts it in practice 2. Subordinate Lawyers 1. MR 5.2 states: Responsibilities of a Subordinate Lawyer - (a) A lawyer is bound by the RPC despite that the lawyer acted at the direction of another person (b) a subordinate lawyer doesnt violate the RPC if that lawyer acts in accordance w/ a supervisory lawyers reasonable resolution of an arguable question of professional duty 2. R3d 13 states: see above 3. Supervising Client 1. Coppock v State Bar of CA (1) CA even applied the same supervisory standards to the client b/c the lawyer knew what the client was doing and looked away Ineffective Assistance of Counsel 1. At trial 1. Strickland v Washington ( thinks his death sentence should be

8.

set aside b/c his lawyer didnt look into his mental state or investigate character witnesses) (1) An error by counsel, even if unreasonable, doesnt warrant setting aside the judgment if the error had no effect on the judgment (1) Any deficiencies in performance must be prejudicial to the in order to constitute ineffective assistance under the constitution (2) To get a reversal of a death sentence, the must show that counsels performance was deficient by using the 2 prong test (1) Performance prong - counsel made errors so serious that counsel was not functioning as the counsel guaranteed the by the 6th amendment 1) Counsels performance has to fall below the prevailing standard of care 2) reasonableness standard. You could be negligent, yet still effective (2) Prejudice prong - the deficient performance prejudiced the by showing that counsels errors were so serious as to deprive the of a fair trial, a trial whose result is reliable 1) prejudice is presumed when counsel is burdened by actual conflict of interest Sullivan 2) limited presumption - doesnt have to prove prejudice but two other things (i) he was under an actual conflict of interest presumably at trial (ii) that conflict affected the lawyers performance making it inadequate 3) if you can show that the outcome of the case would have been different (3) given the overwhelming aggravating factors, there is no probability that the omitted evidence would have changed the conclusion the ineffectiveness claim is w/o merit 2. the standard for attorney performance is that of reasonably effective assistance (objective standard) (1) its a constitutional standard that arose from the 6th amendment right to effective counsel 3. The B/P is so high that many states have had no reversal for ineffective assistance of counsel (1) Need demonstrable proof of innocence (2) This case basically says that the only time it should be reversed is when an innocent person has been convicted Formation of Attorney-Client Relationship 1. When is the Attorney-Client Relationship Established? 1. R3d 26 states: A Lawyers Actual Authority - A lawyers act is

2.

considered to be that of a client when (1) the client has expressly or impliedly authorized the act (2) authority concerning the act is reserved to the lawyer or (3) the client ratifies the act 2. Applies not just when the lawyer agrees to represent the client. They have obligations to non clients even though theres no fee received, no contract, no memo of an agreement and theres no actual work done for the alleged client 3. CA has the strictest protection in the nation for client confidences (1) an a/t rel may be established even where the attorney is an imposter, is not licensed, is suspended, or is disbarred Who is the Client? 1. Representing Clients Under a Disability 1. MR 1.14 states: Client Under a Disability - (a) When a clients ability to make adequately considered decisions is impaired, whether b/c of minority, mental disability or other reason, the lawyer shall maintain a normal client-lawyer relationship w/ the client (b) a lawyer may seek the appointment of a guardian or take other protective action w/ respect to a client, only when the lawyer reasonably believes that the client cannot adequately on his own 2. R3d 24 states: A Client w/ Diminished Capacity - (1) When a clients capacity to make adequately considered decisions, whether b/c of minority, physical illness, mental disability, or other, the lawyer must maintain a normal client-lawyer relationship w/ the client and act in the best interest of the client (2) A lawyer rep a client w/ diminished capacity and for whom no guardian or other rep is available to act, must, pursue the lawyers reasonable view of the clients objectives or interests as the client would define them if able to make adequately considered decisions, even if the client expresses no wishes or gives contrary instructions (3) If a client w/ diminished capacity has a guardian or other person legally entitled to act for the client, the clients lawyer must treat that person as entitled to act w/ respect to the clients interests in the matter, unless (a) the lawyer represents the client in a matter against the interests of that person or (b) that person instructs the lawyer to act in a manner that the lawyer knows will violate the persons legal duties toward the client (4) A lawyer representing a client w/ diminished capacity may seek the appointment of a guardian or take other protective action w/in the scope of the rep when doing so is practical and will advance the clients objectives or interests (1) Comment c: A lawyer may properly w/hold from a disabled client information that would harm the client 3. CA has not addressed the problem of the disabled client in its ethics rules 4. Two roles the attorney may perform (1) Advocacy - attorney seeks to secure full legal rights for the client, even if the client will thereby be denied much needed

2.

treatment (2) Paternalism - attorney decides what is best for the client and acts accordingly, even if the client does not appear to want that choice 5. Chessman (CA death penalty) told his lawyers that he didnt want them to appeal the death penalty and wanted to die b/c he had done something awful in a formal life and this death would wipe the slate clean (1) Do you act in advocacy (autonomy) or paternalism (1) Autonomy is favored over paternalism Representing Fiduciaries 1. R3d 51(4) states: Duty of Care to Certain Nonclients - A lawyer owes a duty to use care to a nonclient when and to the extent that (a) the lawyers client is a trustee, guardian, executor, or fiduciary acting primarily to perform similar fxns for the nonclient (b) the lawyer knows that appropriate action by the lawyer is necessary w/ respect to a matter w/in the scope of the rep to prevent or rectify the breach of a fiduciary duty owed by the client to the nonclient, where (i) the breach is a crime or fraud or (ii) the lawyer has assisted or is assisting the breach (c) the nonclient is not reasonably able to protect its rights and (d) such a duty would not significantly impair the performance of the lawyers obligations to the client (1) Comment h:
. cant find one of them. She sues the dads lawyer b/c the lawyer knew about it)

2.

Parents and Children (1) Lamare (MA case - dad fled country with the kids and mom (1)

3.

court said that the lawyer had no duty to the child. He represented the father, not both (2) the knowledge of the fathers action didnt create a duty to the child to do anything (2) Tushinsky (CA case - attorney hypnotized the daughter to find out if she was molested by the father) (1) purest dicta therefore not binding on anyone (2) found that there is a duty. The issue is not undivided duty to client, but is the public policy argument that children are in need of protection, even sometimes from their folks (3) duty is to protect the child even at the expense of your loyalty to the client Guardians and Wards (1) MR 1.14 Comment 4: If the lawyer represents the guardian as distinct from the ward, and is aware that the guardian is

(2)

acting adversely to the wards interest, the lawyer may have an obligation to prevent/ rectify the guardians misconduct Morales v Field (lawyers represent fiduciary and tell
beneficiary he doesnt have to do anything and should be assured that his interests will be protected)

(1)
(3)

lawyers make gratuitous statements to the beneficiary and he relied on them to his detriment the lawyer should be responsible intentional - lawyer and fiduciary conspire to violate the beneficiary the beneficiary can sue either the attorney or fiduciary 1) claim from tort theory of intentional wrongdoing, not b/c of the status of being the representative of the fiduciary negligent - negligent lawyer failed to discover fiduciaries violation of beneficiary 1) different from Lucas b/c in Lucas the interests of the client and 3rd party are exactly identical. There is harmony btw what the fiduciary wants to give and what the 3rd party wants to get. Here there is disharmony b/c the fiduciary is cheating the 3rd party non negligent nor has actively participated in the harm 1) Morales principle is rejected (that youre liable simply b/c youre involved in fiduciary triangle), but the fact pattern where they created expectation is reaffirmed in the Johnson case p 669 (you can recover b/c youre lured into it by the statements of the attorney) 2) triangular relationship cases

3 possible fact patterns

(1)

(2)

(3)

3.

Representing Entities 1. MR 1.13 states: Organization as Client - (a) A lawyer employed by an org represents the org acting through its constituents (b) If a lawyer for an org knows that an employee of the org is violating a legal obligation to the org, the lawyer shall proceed in the best interest of the org (c) If despite the lawyers efforts, the highest authority of the org doesnt stop violating the law or injuring the org, the lawyer may resign (d) a lawyer shall explain the identity of the client when it is apparent that the orgs interests are adverse to those of the constituents (e) a lawyer rep an org may also rep any constituent. If the orgs consent to the dual representation is required the consent shall be given by an appropriate official of the org other than the indiv who is to be represented 2. CRPC 3-600 states: Organization as Client - (a) In rep an org, a

3.

member shall conform his rep to the concept that the client is the org itself, acting through its highest authorized officer, employee, body, or constituent overseeing the particular engagement (b) If a member rep an org knows that an agent of the org is violating a law reasonably imputable to the org, the member shall not violate his duty of protecting all confidential info (c) if the highest authority of the org insists on violating the law that injures the org, the lawyer is limited his right and duty to resign (d) a member shall explain the identity of the client for whom he acts, whenever it is apparent that the orgs interests are adverse to the constituent. The member shall not mislead the constituent into believing that he can communicate confidential info to the lawyer in a way that will not be used in the orgs interest if that is adverse to the constituent (e) a member rep an org may also rep any constituent. If the orgs consent to the dual rep is required, the consent shall be given by an appropriate constituent of the org other than the indiv who is to be represented Entity Theory
(1) Rule 1.13a - entity theory -rep of an organization makes the lawyer recognize the client constituent as a legal fiction and to recognize the entity as an abstract Rule 1.13b two triggers set up -

(2)

(1)

(3)

Actual/potential legal violation to the organization breach of fiduciary duty (2) Violation of law which reasonably might be imputed to the organization and is likely to lead to substantial injury to the organization Rule 1.13c - In the corporate world, the worst thing a lawyer can
do is squeal on a client. Theyd rather see the entity fall, than squeal

4.

Seems the opposite is what is consistent with entity theory (4) Rule 1.13d Creates a form of Miranda warning (1) If you can make it unreasonable for the constituent to believe that the attorney is acting as his personal attorney, then the conflict never arises. Anything shared with the attorney by the constituent is discloseable to the entity (2) Though the idea is right, the actual wording is not 1) Says you shall explain your relationship to the constituent when its already apparent that the entity is in conflict with the constituent 1) this is too late. Its better to explain the identity of the client before anything become apparent (5) Rule 1.13e - If theres a conflict, it might be cured by consent A Corporation and its Officers

(1)

(1)

Meehan v Hopps (Former president of org sued by org) (1) lawyer represents the corporation, not the individual
(2) Although his actions wouldve benefitted the pres (employment contract), it doesnt create an attorney/client relationship (3) since the confidences werent personal, but by fiduciary theory were required to be communicated to the lawyer, the pres was duty bound to give them to the entity (4) Before they sign the employment contract they are in an arms length relationship (at adverse positions) 1) The lawyer doesnt owe a duty in this arms length situation to the president b/c all he was doing was representing the corporation Goldstein v Lees (The entity lawyer resigned to work for a director in a suit against the entity) (1) The lawyer owes a fiduciary duty to the entity and the attorney cant jump ship and side with any faction cannot rep the director or the shareholders

(2)

(2)

(3)

CA - an attorney cannot recover for services rendered if those services are rendered in contradiction to the requirements of professional responsibility (3) a director has a right to get confidential info, but no exclusive right to get it from formal counsel Dickerson v Superior Court (Ferrito) (lawyer had
represented D and later refused to answer questions about him in deposition over the disappeared entity) (1) As long as there is a holder of the privilege in existence at the time disclosure is sought, the attorney has the duty to exercise the privilege unless the holder of the privilege instructs him not to do so

5.

Closely Held Corporations (1) Have limited number of shareholders, but Problem is identifying the constituents from the entity is difficult to do here (2) Woods v Superior Court (lawyer represented the family corporation, and now they are getting a divorce) (1) Its not representation of concurrent clients unless you find that by representing the entity the lawyer was also representing the parties individually (2) Absent consent or waiver, the attorney of a family owned business, corporate or otherwise, should not represent one owner against the other in a dissolution action (3) Reaffirms the rule that you represent the entity and you cant prefer any of its constituents and definitely not to the point of representing them (3) Flatt (1) Disqualification is proper to avoid any appearance

6.

of impropriety. Dual rep of clients w/ adverse interests is impermissible (in the absence of informed consent) and requires automatic disqualification (4) Skarbrevik v Cohen (corporate attorney conspired w/ majority shareholders to defraud the minority sharehoder) (1) An attorney representing a corporation doesnt become the representative of its stockholders merely b/c the attorneys actions on behalf of the corporation also benefit stockholders; as attorney for the corporation, counsels first duty is to the corporation (2) Analysis 1) look for attorney client relationship 1) if so, then a duty is automatically owed 2) has the attorney acquired confidential information in such a way that the attorney has a duty to protect that information? 3) has advice or reliance been enduced 4) express fiduciary duty? 5) Lucas v Hamm (Goodman v Kennedy) theory? 1) the is the intended beneficiary and youre negligence has cause him harm 6) fiduciary duty implied from the s status (5) In re Banks (The entity acted unethically and illegally in order to prevent from going bankrupt) (1) The firm represented both Michel and the corporation at the time the contract was drawn and that it could not subsequently, when the interests of its clients were in opposition, represent either one in a dispute over the application of the contract w/o the consent of both (2) CA 1) You can represent both the entity and the individual. But once their interests become adverse, you must step down from representing the entity. You can still represent the individual. Seems weird that youd give up on the entity. But its justified b/c its thought that youre connection with the constituent indiv would be so close that if you had stuck with the entity, you wouldnt have the degree of loyalty that you should have A Partnership and its Partners

9.

Responsible Citizens v Superior court (1) attorney representing a partnership doesnt necessarily have a duty to a partner (accepts entity theory) 1) CA applies entity theory in practically all situations involving an organization (2) CA Rule 3-600a and e 1) (e) says that if you rep the entity you can also rep the constituent under certain circumstances (3) If you represent the partnership, you dont automatically represent the individual. Just as if you rep the entity you dont automatically rep the indiv (4) Woods is factually distinguished 1) Here the controversy is btw one owner of the business and a 3rd party and the business is not the source of the conflict 7. Partnerships - General and Limited Partners (1) Johnson v Superior Court (1) Factors which would determine whether the partnership attorney has established an attorneyclient relationship w/ the individual partners 1) the size of the partnership 2) the nature and scope of the attorneys engagement 3) the kind and extent of contracts btw the attorneys and the indiv partners 4) the attorneys access to financial info relating to the indiv partners interests 5) primary attention should be given to whether the totality of the circumstances, including the parties conduct, implies an agreement by the partnership attorney not to accept other representations adverse to the indiv partners personal interests (2) Court says that 1) The lawyer owes fiduciary duty to limited partners b/c the general partner also owes a duty to the limited partners and the two of them (lawyer and general partner) cannot conspire to act against them 1) Similar to not being able to take sides The Attorney-Client Privilege
1.

(1)

1.

Three types

2.

Btw the attorney/client or a third party/client (1) Attorney/client - eg. Open up a restaurant together (2) Third party/client - when one party is willing to pay for the representation of the client (1) eg. Dad pays for my defense cost (2) lawyer cant accept the money w/o the clients consent (i) if there is consent, the lawyer doesnt have duty to the 3rd party to give them any info about the representation 2. Multiple clients (1) Lawyer simultaneously represents multiple clients (2) Eg. Class action, many criminal s in the same case or in difference cases etc (3) In pursuing the interests of one client and would in effect be hurting the other client (4) Rule of thumb - cannot sue a current client (5) While you can rep multiple, if their interests become actually adverse, you must step down in representation 3. Successive or consecutive clients (1) You rep a client and the representation ends, then new client whose interests are adverse to the former client (2) With concurrent clients - each is owed undivided loyalty and the duty to maintain confidences and secrets (3) With successive clients, you can sue your old client on a different topic, but the obligation of non-disclosure still stands (4) You can sue former clients in unrelated cases, but you cant sue concurrent clients in unrelated cases 2. Conflicts dont necessarily preempt representation 1. Most conflicts are curable if the parties are willing to waive the conflict 2. CA - non-curable non-waivable conflicts 3-600 (1) Cant rep the and at trial in the same case even if they both say its okay (2) a adopts entity theory (3) b rejects the internal violation trigger and divides the other trigger from the Model Rule (1) No maintaining and outside lawyers second opinion (4) c, d, and e follow Model Rules and Miranda warning ideas The Attorney-Client Privilege and Confidentiality 1. State v Beatty (patient confess to psychiatrist she committed crimes and he turned her into the authorities) 1. Public policy behind te physician-patient privilege statute is to inspire confidence in the patient so as to encourage him to make full disclosures to his medical advisers the physician may properly treat his patient

1.

2.

3.

2. Same is intended for a/c relationship The Nature and Purpose of the Privilege 1. The a/c privilege is not constitutionally based 2. Every state has its own version of the privilege 3. R3d 68 states: A/C Privilege - The a/c privilege may be invoked w/ respect to (1) a communication (2) made btw privileged persons (3) in confidence (4) for the purpose of obtaining or providing legal assistance for the client 4. A/C privilege contains the following elements (1) a client (2) seeking legal advice (3) from a person the client believes to be an attorney (4) engages w/ that attorney in giving or receiving a communication (5) made in confidence or intended to be confidential (6) which the client doesnt consent to be disclosed The CA Evidence Code 1. The a/c privilege in CA only applies in court 2. 950 states: Lawyer - means a person authorized, or reasonably believed by the client to be authorized to practice law in any state or nation 3. 951 states: Client - a person who consults a lawyer for the purpose of retaining the lawyer or securing legal service or advice from him in his professional capacity 4. 953 states: Confidential communication btw client and lawyer info transmitted btw a client and his lawyer in the course of that relationship and in confidence 5. 954 states: Lawyer-client privilege - the client has a privilege to refuse to disclose, and to prevent another from disclosing a confidential communication btw client and lawyer if the privileged is claimed by the holder of the privilege, an person authorized to clam the privilege by the holder or the person who was the lawyer at the time of the confidential communication. No person may claim the privilege if there is no holder of the privilege in existence or if he is instructed by a person authorized to permit disclosure 6. 955 states: When lawyer required to claim privilege - lawyer shall claim the privilege whenever he is present when the communication is sought to be disclosed and is authorized to claim the privilege 7. 912 states: Waiver of privilege - The right of any person to claim a privilege is waived w/ respect to a communication protected by such privilege if any holder of the privilege, w/o coercion, has disclosed a significant part of the communication or has consented to such disclosure made by anyone 8. Policy - the legal system could not be reliable and effective, unless full protection of client confidences could be guaranteed 9. In criminal cases, the privilege also serves to preserve a s privilege against self-incrimination

10. 4.

When a party asserts the a/c privilege, it is that partys burden to prove the preliminary fact that a privilege exists Lawyer and Client 1. R3d 70 states: A/C Privilege: Privileged Persons - are the client (prospective included), the clients lawyer, agents of either who facilitate communications btw them, and agents of the lawyer who facilitate the representation 2. R3d 72 states: A/C Privilege: Legal Assistance as the Object of a Privileged Communication - A communication is made for the purpose of obtaining or providing legal assistance if it is made to or to assist a person: (1) who is a lawyer or who the client or prospective client reasonably believes to be a lawyer and (2) whom the client or prospective client consults for the purpose of obtaining legal assistance 3. R3d 73 states: Privilege for an Organizational Client - When a client is a corp, unincorp assoc, partnership, trust, estate, sole proprietorship, or other for-profit or non-profit org, the a/c privilege extends to a communication that (1) otherwise qualifies as privileged under 68-72 (2)is btw an agent of the org and a privileged person (3) concerns a legal matter of interest to the org and (4) is disclosed only to (a) privileged persons and (b) other agents of the org who reasonably need to know of the communication in order to act for the organization 4. Upjohn v US (pharmaceutical co accused of paying foreign officials to guarantee business) (1) the privilege only protects disclosure of communications; it doesnt protect disclosure of the underlying facts by those who communicated w/ the attorney (2) Control group - the people who hold the privilege are those that run the entity or control it; it allows them to run the company w/o fear of discoverability (3) lower employees dont have the privilege. If they did then there would be blanket silence and the cant find anything out (4) Elements which trigger protection/privilege under Upjohn (1) must be a communication (2) made by an entity employee (constituent) (3) at the direction of an entity officer (employee is induced (4) to an entity attorney (5) who is acting in the capacity of an entity attorney (6) for the purpose of the entity obtaining legal advice from the entity attorney (5) Does not apply where (1) an attorney questions former employees (2) where an employee voluntarily provides the attorney w/ information w/o being requested by an entity officer to do so

(6)

5.

6.

7.

8.

What is vital is that the communication be made in confidence for the purpose of obtaining legal advice from the lawyer. If what is sought is not legal advice but advice of another kind, no privilege exists Chadbourne v Superior Court (Smith)(Smith fell on a sidewalk negligently maintained by Chadbourne) - CA answer to Upjohn (1) A communication is not protected by the a/c privilege, even when made in the course of professional employment, unless the client intends that it be treated in confidence (1) here there was no direct chain of communication (2) rejects the control group test an gave a new 11-step formula for flexibility (find a combination that works) US v Rowe (two associate lawyers to investigate another lawyers handling of client funds) (1) Since he asked lawyers to conduct the investigation, he is justified in expecting that the communications w/ these lawyers be privileged (2) By virtue of being a law firm, they could be their own lawyers and clients McCormick v Superior Court (Nelson) (Firm knew that Nelson intended to sue them so they hired another law firm to defend) (1) If the communication has but a single purpose, and that purpose is for transmittal to an attorney in the course of professional employment, then the privilege applies (2) Prior to such employment, the communications of attorneys btw themselves dont enjoy the protections of the a/c privilege (3) So long as the McCormick firm created the docs for its own use, the intended use was not a confidential transmittal to an attorney or indeed any transmittal at all (4) its absurd that a lawyer can be both a lawyer and a client Hoiles v Superior Court (Freedom Newspapers) (minority shareholder and director of family corp requests related documents) (1) Corporations enjoy a/c privileges and in closely held corporations (2) Goldstien v Lees (1) the shareholders dont have access to confidential info, but the directors did, as part of their fiduciary duty (2) Hoiles has not brought the suit as a director, only as shareholder (3) Garner (1) An attack on the notion that shareholders dont have access to confidential information 1) Shareholders Exception (derivative suit exception)- allowed them to 1) if shareholders are suing the entity to

9.

save entity from harm from the directors and majority shareholders, then the only way they can do that is if they have access to confidential info. It doesnt violate the safety of the entity b/c this suit would purge them of the people who are polluting it 2) not all fed courts follow this exception 2) Hoiles says this cant be an exception 1) The CA cts have abdicated the right to decide questions of privilege in lieu of legislative action 2) Whatever the legislature decides cannot be altered by the courts 3) The ultimate authority in regards to privilege is the legislature 4) Even if they wanted it to be an exception, they cant do it Ex Parte Contact With Former Entity Employees (1) MR 4.2 states: Communication w/ Person Represented by Counsel - In representing a client, a lawyer shall not communicate about the subject of the representation w/ a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so (1) Comment: This does not prohibit communication w/ a represented person concerning matters outside the representation (2) MR 4.3 states: Dealing w/ Unrepresented Person - In dealing on behalf of a client w/ a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyers role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding (1) Comment: During the lawyers representation of a client, the lawyer shouldnt give advice to an unrepresented person other than the advice to obtain counsel (3) CRPC 2-100 states: Communication w/ a Represented Party - (a) While rep a client, a member shall not communicate directly/indirectly about the subject of the rep w/ a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer (b)party includes (1) an officer, director, or

(4)

(5)

(6)

(7)

(8)

managing agent of a corp or assoc, and a partner or managing agent of a partnership or (2) an assoc member or an employee of an assoc, corp, or partnership, if the subject of the communication is any act or omission of such person in connection w/ the matter which may be binding upon or imputed to the org for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the org (c) This rule shall not prohibit (1) communications w/ a public officer, board, committee, or body (2) communications initiated by a party seeking advice or representation from an indep lawyer of the partys choice or (3) communications otherwise authorized by law R3d 98 states: Statements to a Nonclient - A lawyer communicating on behalf of a client w/ a nonclient may not (1) knowingly make a false statement of material fact or law to the nonclient (2) make other statements prohibited by law (3) fail to make a disclosure of info required by law R3d 99 states: A Represented Nonclient: The General Anti-Contact Rule - A lawyer rep a client in a matter may not communicate about the subject of the rep w/ a nonclient whom the lawyer knows to be represented in the matter by another lawyer or w/ a representative of an organizational nonclient so represented unless (a) the communication is with a public officer (b) the lawyer is a party and represents no other client in the matter (c) the communication is authorized by law (d) the communication reasonably responds to an emergency or (e) the other lawyer consents R3d 100 states: Definition of a Represented Nonclient (1) a natural person represented by a lawyer and (2) a current employee or other agent of an org represented by a lawyer (a) if the employee or other agent supervises, directs or regularly consults w/ the lawyer concerning the matter or if the agent has power to compromise or settle the matter (b) if the acts or omissions of the employee or other agent may be imputed to the org for purposes of civil or criminal liability in the matter or (c) if a statement of the employee or other agent wold have the effect of binding the org w/ respect to proof of the matter R3d 102 states: Information of a Nonclient Known to Be Legally Protected - A lawyer communicating w/ a nonclient in a situation permitted may not seek to obtain info that the lawyer reasonably should know the nonclient may not reveal w/o violating a duty of confidentiality to another imposed by law R3d 103 states: Dealings w/ an Unrepresented Nonclient In the course of rep a client and dealing w/ a nonclient who is not rep by a lawyer (1) the lawyer may not mislead the

10.

11.

12.

13.

nonclient, the prejudice of the nonclient, concerning the identity and interests of the person the lawyer represents (2) when the lawyer knows or reasonably should know that the unrepresented nonclients misunderstands the lawyers role in the matter, the lawyer must make reasonable efforts to correct the misunderstanding when failure to do so would materially prejudice the nonclient (9) Nalian Truck Lines v Nakano Warehouse (former member of a corporate adversarys control group) (1) Once this person is a former member of the control group, they are no longer a current member of the control group, thus they are not a part of the entity, and thus are not protected and thus can be contacted (2) CA rule says a former member of the entity can be contacted Current members of the entity (1) AAA (1) Current people not in the control group can be contacted 1) control group includes the extension in CA 2-100 b2 - people who arent running or managing it but have a way to subject it to liability (2) Mills Landen Water Co (1) Still in control group in a different capacity. Cant have contact with that person Summary (1) Only those who are currently in the entity and are w/in the definition of (b)1 or (b)2 fall w/in the definition of CA Rule 2-100 (2) The ABA MR 4.2 doesnt exist as a separate rule Federal Prosecutors and Ex Parte Contacts (1) R3d 99: see above (2) US v Lopez (criminal goes behind his lawyers back to make plea bargain with the lawyer of the co. New lawyer steps in and helps Lopez w/o telling Lopezs lawyer) (1) Lyons had an ethical duty to avoid communicating directly with Lopez regarding the criminal prosecution so long as Lopes was represented by Tarlow The Privilege and Government Lawyers (1) R3d 74 states: Privilege for a Governmental Client unless applicable law otherwise provides, the attorneyclient privilege extends to a communication of a govt org and of an indiv employee or other agent of a governmental org as a client w/ respect to his or her personal interest (2) In re Grand Jury Subpoena Duces Tecum (federal grand jury compel the production of document of Clintons

14.

involvement in Whitewater) (1) White House may not use the a/c privilege to avoid complying w/ the subpoena issued in this case by federal grand jury calling for the notes in question (2) there is not work product immunity for materials merely b/c they were prepared while some other person, such as Mrs. Clinton, was anticipating litigation (3) In re: Bruse R. Lindsey (Grand Jury Testimony) (1) where one consults an attorney not as a lawyer but as a friend or as a business adviser, the consultation is not professional nor the statement privileged (2) when an executive branch attorney is called before a fed grand jury to give evidence about alleged crimes w/in the exec branch, that attorney shall provide that evidence 1) unlike a private practitioner, the loyalties of a government lawyer therefore cannot and must not lie solely w/ his or her client agency (3) 535(b) states: all government employees including lawyers, are duty-bound not to w/hold evidence of federal crimes Confidential communications (1) R3d 69 states: A/C Privilege: Communication - is any expression through which a privileged person undertakes to convey info to another privileged person and any doc or other record revealing such an expression (2) R3d 71 states: A/C Privilege: In Confidence - if at the time and in the circumstances of the communication, the communicating person reasonably believes that no one will learn the contents of the communication except a privileged person or another person w/ whom communications are protected under a similar privilege (3) R3d 72: see above (4) State Farm Fire and Casualty Company v Superior Court (Taylor) (fraudulently w/held earthquake insurance coverage) (1) the crime/fraud exception precluded application of the a/c privilege (2) a/c privilege only protects the communication, not underlying facts (3) the communications were made in connection w/ discovery undertaken during litigation there is a reasonable relationship btw the communications and the alleged fraud (5) US v Bauer (man made false statements on his bankruptcy petition and his lawyer testified against him and violated

15.

the privilege) (1) test for invoking crime-fraud exceptions 1) whether there is reasonable cause to believe that the attorneys services were utilized in furtherance of the ongoing unlawful scheme 2) the exception applies even where the attorney is unaware that his advice may further an illegal purpose (2) since lawyer told him not to lie, his advice was not in furtherance of the fraud b/c he DID lie What the Privilege Does Not Cover (1) R3d 79 states: Subsequent Disclosure - The a/c privilege is waived if the client, the clients lawyer, or another authorized agent of the client voluntarily discloses the communication in a non-privileged communication (2) R3d 80 states: Putting Assistance or a Communication in Issue - (1) the a/c privilege is waived for any relevant communication if the client asserts as to a material issue in a proceeding that (a) the client acted upon the advice of a lawyer or that the advice was otherwise relevant to the legal significance of the clients conduct (b) a lawyers assistance was ineffective, negligent, or otherwise wrongful (2) the a/c privilege is waived for a recorded communication if a witness (a) employs the communication to aid the witness while testifying (b) employed the communication in preparing to testify, and the tribunal finds that disclosure is required in the interests of justice (3) R3d 86 states: Invoking the Privilege and Its Exceptions (1) When an attempt is made to introduce in evidence or obtain discovery of a privileged communication (a) a client, a personal representative of an incompetent or deceased client, or a person succeeding to the interest of a client may invoke or waive the privilege, either personally or through counsel or another authorized agent (b) a lawyer, an agent of the lawyer, or an agent of a client from whom a privileged communication is sought must invoke the privilege when doing so appears reasonably appropriate unless the client (i) has waived the privilege (ii) has authorized the lawyer or agent to waive it (2) A person invoking the privilege must ordinarily object contemporaneously to an attempt to disclose the communication and if the objection is contested, demonstrate each element of the privilege (3) a person invoking a waiver of or exception to the privilege must assert it and, if the assertion is contested, demonstrate each element of the waiver or exception (4) The a/c privilege does not cover all interactions, discussions, and meetings that occur btw the client and his

(5)

(6)

(7)

or her legal representative Details of Attorney-Client Relationship (1) Fact of Employment or Meeting Dates 1) the fact that an attorney has been employed, and the dates on which the attorney and client meet, are not covered by the privilege 2) NO jx permits the privilege on this info (2) Fee Information 1) CSBA 6149 states: Written Fee Contract Confidential Communication - A written fee contract shall be deemed to be a confidential communication w/in the meaning of 6068(e) 2) No CA case addresses the issue of whether the identity of the client who is a party to the fee agreement is confidential (3) Client Identity and the Last link Doctrine 1) Created in the 1960's in the 9th Circuit (including CA) - is a minority exception 2) Generally the identity of the client is not privileged info, but there are limited times when discovery of that identification would lead to discovery of privileged information 3) A clients identity and fee arrangement may be privileged when the person invoking the privilege is able to show that a strong possibility exists that disclosure of the info would implicate the client in the very matter for which legal advice was sought 4) cant be discoverable if its the last link in the chain that the govt needs to get evidence for action Pre-existing Business Records & Personal Papers (1) Fisher v US (summons directing an attorney to produce docs delivered to him by his taxpayer client) 1) pre-existing docs which could have been obtained by court process from the client when he was in possession may also be obtained from the attorney by similar process following transfer by the client in order to obtain more informed legal advice 2) these papers are not private papers and so can be discovered Physical Evidence (1) People v Meredith (guys murder and rob and he confesses to his lawyer where the wallet is) 1) an observation by defense counsel or his

(8)

investigator, which is the product of a privileged communication, may not be admitted unless the defense by altering or removing physical evidence has precluded the prosecution from making that same observation 2) since the lawyer had moved the wallet, his testimony is admissible 3) to extend the a/c privilege to a case in which the defense removed evidence might encourage defense counsel to race the police to seize critical evidence Exceptions to the Privilege (1) Lawyer-Client Breach of Duty Exceptions 1) MR 1.6 states: Confidentiality of Info - (a) A lawyer shall not reveal info relating to representation of a client unless the client consents after consultation, except for disclosures that are impliedly authorized in order to carry out the representation (b) A lawyer may reveal such information to the extent the lawyer reasonably believes necessary: (1) to prevent the client from committing a criminal act that the lawyer believes is likely to result in imminent death or substantial bodily harm or (2) to establish a claim or defense on behalf of the lawyer in a controversy btw the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyers representation of the client 2) R3d 83 states: Lawyer Self-protection The a/c privilege doesnt apply to a communication that is relevant and reasonably necessary for a lawyer to employ in a proceeding (1) to resolve a dispute w/ a client concerning compensation or reimbursement that the lawyer reasonably claims the client owes the lawyer or (2) to defend the lawyer or the lawyers associate or agent against charge by any person that the lawyer, associate, or agent acted wrongfully during the course of representing a client 3) CA says that you can reveal that info even in

(2)

(3) (4)

(5)

(6)

the absence of such a proceeding 1) Not decided where its the attorney who breaches the duty The Crime-Fraud Exception 1) CA Evidence Code 956 states: Crime or Fraud - There is no privilege under this article if the services of the lawyer were sought or obtained to enable or aid anyone to commit or plan to commit a crime or a fraud 2) In re Grand Jury Subpoena (company makes and exports global positioning units and illegally sold to Iran w/o a license) 1) the privilege does not extend to communications which solicit or offer advice for the commission of a crime or fraud 2) in furtherance of their scheme, the Corporation sought its counsels legal assistance in obtaining export licenses to both countries 3) there is sufficient showing that the crime-fraud exception could apply The Joint-Clients Exception 1) R3d 75 and 76: see above The Property Exceptions 1) R3d 81 states: A Dispute Concerning a Decedents Disposition of Property - The a/c privilege doesnt apply to a communication from or to a decedent relevant to an issue btw parties who claim an interest through the same deceased client, either by testate or intestate succession or by inter vivos trxn The Fiduciary Exception 1) R3d 84 states: Fiduciary-Lawyer Communications - In a proceeding where a trustee of an express trust or similar fiduciary is charged w/ breach of fiduciary duties by a beneficiary, a communication is not privileged if it (a) is relevant to the claimed breach and (b) was btw the trustee and a lawyer who was retained to advise the trustee concerning the administration of the trust The Derivative Suit Exception 1) R3d 85 states: Communications Involving a Fiduciary w/in an Org - In a proceeding btw an organizational client and

(9) (10)

shareholders or other constituents of the organization toward whom the directors, officers, or similar persons managing the org bear fiduciary responsibilities, the a/c privilege of the organization may be w/held from a communication if the tribunal finds that (a) those managing the org are charged w/ breach of their obligations toward the shareholders, or other constituents or toward the organization itself (b) the communication occurred prior to the assertion of the charges and relates directly to those charges and (c) the need of the requesting party to discover or introduce the communication is sufficiently compelling and the threat to confidentiality sufficiently confined to justify setting the privilege aside Waiver of the Privilege (1) R3d 79 80 and 86: see above Termination of the Privilege (1) R3d 77: see above

TABLE OF COMPARISON: ETHICS RULES ON CLIENT CONFIDENCE Intent to Commit/Prevention Any Crime Death/ Injury Criminal Fraud Noncriminal Fraud Prior Crime or Fraud Using Lawyers Services Must not 1.6(a) Ratification Prior Perjury/ Fraud on Tribunal Ongoing Client Crime or Fraud

ABA Model Rule

Must not 1.6(a)

May 1.6(b)(1)

Must not 1.6(a)

Must not 1.6(a)

Must 3.3(a)(2)

Must 4.1(b) see also 1.2(d) Must not 6068(e) BPC

CA

Must not 6068(e) BPC

Must not 6068(e) BPC

Must not 6068(e) BPC

Must not 6068(e) BPC

Must not 6068(e) BPC

Must not 6068(e) BPC

TABLE OF COMPARISON: LAWYER SCREENING Jurisdiction ABA Applicable rule Model Rules of Professional Conduct Rules of Professional Conduct Screening by Rule? No Rule Provision 1.9(b) and 1.10(a) CA has no ethics rule on this subject Note

CA

No

TABLE OF COMPARISON: WRITTEN FEE AGREEMENTS Jurisdiction ABA CA Applicable Rules Model Rules of Professional Conduct Statutory Provisions Contingent Must: 1.5(c) Must: 6147 of BPC Others Preferred: 1.5(b) Must: (if not a corporation and over $1000) 6148 BPC

18 ,

( , )

( ; , , ) . , . .

& , & , , , , , , . ( . ). , , . () : , . & , ,

 , . , , . . ( . 6125) _ , , , , & , : ; , , ; ; , ; , ; . . . . ( ) . . : 1 , , . . . . ( ) . . , , . : .

, . , . , . ( ). . , , , . _ . _ . . . . . . . . , . , . . . , .

 (1 ( ), , , ) , , , , , , , , , , , . . : , , , , ( ), ( ), ( . _ ), , ( ) , . , , , , . , , / .

. ( / , ), , . , , ( ). . , . ( ). ( . ) , , 1

. . . , , , , , . .

 &

: , ( , . . . ) . . , , > 1 , , . , , , ( ) , , . ; . . . , . 1 / . .
, : . , . ( , ) , , . . , , . , . . . (% ) . . ( ) . , , . . . , . .

 , . 10 . ( ?) _ . , . : . ( ) . .

&

( & ) : . , . . ( & ) : . ; ; ( , ) ; , , , .

 . //, , , . 6 [ . . = ] . , . , . . = . = . (1) , (2) , (3 ) [ ; , ] , ( 4) , ( ) . . .

 . , , . , . . ( ), ( ) . : . . . , . . , .

; . , . ;

 . : (, , , ) . ( ). , , , . _ . , . , , . , . . . .

 : ( & ) ( ) . ( [ ] ; ; ( . . ). ) ( , , , , . ) ( . ) . , . . , . . . , . . : ( . . ) . , , , ( , ). , . (? ) . ,

. , . : , , . : , . , . . . : . : . , . , .

 . , . ( ) ( ) . ( )

, . . . ( ), , . _
( ) .

, , , , .
& ( ) . .

 , . , , , . . ( ), , . , , , . ( ) . . .

, . . () . , . . , , , . . , . , . (

 ) , 5 . , . . .

& , . , . ( ) . () (1 ) (2 ) ( ). , / . , , , . , . ( ) . . ( ) . : , . . : : , , , , (: ).

 , & , , , . . , . , . . ( , ). , , . , . ( . . ) . , . . _ ( ), . . . () . , .

. .

 . . , ( ). ( ), . . . . . : , ( ; ). . : (1) , . , ; (2 ) , . , ( ) , . , . , ( ) . , . , 15 , , , . , . . , ( ). .

 ( , ) . . (1 ) ; ( 2 ) (). , , , . . (1) ( ) , (2 ) . . , . . . . : . ( ) . , . , . : ; ; . . _ .

 . , , . . . , . . , . , . . . . . . . ( ? ?? ) , , , , ( ; , , ) . , ( ) . . . , . , . . , , , , ( ) . ( )

 _ , . , ( ).