# How to Ace FYLSE/Professional Responsibility Outline
## Lawyer/Client Relationship

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

## Conflict of Interests

An L may not have a conflicting interest himself to his client.
A concurrent conflict of interest exists if there is significant risk that the representation of one or more clients will be materially limited by L’s responsibilities to another client, a former client, or a third person or by a personal interest of L.
* ABA: Where there is a conflict L may represent the client only if L reasonably believe there will not be an adverse effect, and the client consents in writing after consultation.
* Cal: Only requires written disclosure of the conflict arises from L’s relationship (legal, personal, etc.) with a party of witness in the same matter as the client’s that would substantially affect L’s representation.

### Organization

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

## Duty of Fair Dealing

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

## Duty of Loyalty

Lawyer has a duty of loyalty to his client and may never place his own interests above that of his client.
   Rita and Fred retained Art as their attorney to form the corporation. They told Art that 75 of their friends had committed to invest and become shareholders of RKI. Irv was a duly appointed representative of the 75 investors. Rita, Fred and Irv met with Art, and they agreed that Art would represent Rita, Fred, and all the investors. After extensive discussions with Rita, Fred, and Irv about the operation of the proposed business, Art agreed to prepare the necessary documentation to incorporate RKI.
   Later, outside of Irv’s presence, Rita and Fred asked Art to draft a shareholder agreement that would specifically designate Rita and Fred as permanent directors and officers of RKI and set Rita and Fred’s annual salaries at 12.5% of the corporate earnings. Without further discussion, Art properly formed the corporation. He then prepared the shareholder agreement, including the terms that Rita and Fred had requested. The 75 investors each purchased their shares of stock and signed the shareholder agreement. RKI operated for one year but failed to make a profit. RKI ceased operations and currently owes three months of back rent under the lease.
   In his law practice, Austin represents BHC Company, a health insurance provider. BHC has been sued in a class action by hundreds of physicians, including some of Austin’s friends, for unreasonable delay, and denial and reduction of reimbursements for medical services. Austin initially advised BHC that he was not confident it had a defense to the lawsuit.
   When Officer arrived, he was visibly upset. He began by telling Lawyer that Bank was experiencing financial difficulties which, if not corrected, would lead "to more serious problems." The problem began several years ago when Officer's superior, Boss, the president of Bank, began making loans to fictitious corporations for Boss' benefit. The loans were initially for small amounts, but the amounts increased and now totaled over $1,000,000. Neither Boss nor any of the fictitious corporations is able currently to repay the loans, and interest on the loans has not been paid for some time.
   Officer learned of the loans a year ago but agreed with Boss to keep quiet. In return, Boss arranged to have a $25,000 loan made to XYZ, a newly created corporation, for Officer's personal benefit. Officer reminded Lawyer that Lawyer's firm prepared the incorporating documents for XYZ Corporation.
   Officer believes that all loans for both his and Boss' benefit could be repaid over time, but because Bank's auditors are scheduled to review Bank's financial statements the following week, the problem loans are likely to be revealed.
   Officer asked Lawyer to agree to advise him how to protect himself, Boss, and Bank from liability. Officer requested that the information he had disclosed and Lawyer's advice be kept confidential. Lawyer has not responded to Officer's requests.
   Todd and that she wanted Alice to recommend it to Todd. Although Alice had never handled a criminal case, she agreed to represent Todd and accepted a retainer from Betty.
   At a subsequent court appearance, the prosecutor offered to reduce the charge to simple felony possession and to agree to a period of probation on the condition that Todd undergo a one year period of in-patient drug rehabilitation. Alice asked Todd what he thought about this, and Todd responded: “Look, I’m innocent. Don’t I have any other choice?” Alice, cognizant of Betty’s wish to get the matter resolved, told Todd she thought it was Todd’s best chance. Based on Alice’s advice, Todd accepted the prosecution’s offer, entered a guilty plea, and the sentence was imposed.

## Waiver of Attorney Client Privilege

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

## Duty of Competence

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

## Permissive Withdrawal

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

### Withdrawal- Returning Client’s Files

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

## Malpractice

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

## Duty of Confidentiality

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

## Duty of Communication

A lawyer has the duty to reasonably communicate with his or her client and keep him or her informed of the status of the case during all stages of representation.
   Lawyer did not tell Client that he had written a letter to Physician, Client’s doctor, assuring Physician full payment of her medical expenses from the accident out of the recovery in the case.

## Duty of Fairness

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

## Duty of Candor to the Court

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

## Duty to Report Ethical Violations

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

## Ex parte Communication

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

## Referral

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

## Fees Generally

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

## Fee Splitting

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

## Contingency Fees Agreement

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

## Contingency Fee Limitations

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

## Contingency Fee- Advances

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

## Unauthorized practice of law

L shall not practice with or form a partnership or association authorized to practice law with a non lawyer
   Here, paralegals and investigators are allowed to gather facts, as investigators often do, and paralegals help to type up such reports. The witness interviews may be appropriate if the lawyer has provided the investigators and paralegals with information they want addressed and specific reports are made or they are just doing fact gathering. The negotiations and meetings to discuss settlements should be performed only by the lawyers since they best understand what is in their client’s interest, and these types of tasks require specific legal knowledge and judgments that should be made by lawyers, and lawyers have a duty to communicate with their clients. Non-lawyers should only execute documents that the lawyer instructs them to prepare, and the lawyer should review them prior to concluding any case.

## Advertising

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

## Advertising- Ads

L may advertise services through written, recorded or electronic communication unless the prospective client made known to L their desire to not be solicited.
All advertisements must (1) Contain the name the office address of at least one lawyer (2) Be labeled as advertising material
ABA: envelope needs to state “Advertising Material” Cal: need to label as communication or solicitation but must not use any particular words so long as in 12-point type on first page.
Cal: L must retain a correct copy of the communications for two years. Cal.: Presumes a violation of ethical rules for communications that contain a dramatization without a disclaimer that it is a dramatization.
   The firm has decided to take several steps to increase its business volume.
   Second, the firm plans to acquire from the police department lists of individuals who have been involved in automobile accidents, and to mail letters to those persons informing them that the firm is available for consultation about their legal rights arising out of the accident. Individuals who have been hospitalized as a result of an accident will receive a flower arrangement, delivered "compliments of Jones & Smith, Attorneys at Law."

## Paying for Expenses

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

## Consensual Sex

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

## Duty to Exercise Independent Legal Judgment

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

## Duty of Zealousness

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