Lawyer must act competently to safeguard confidential info from inadvertent/unauthorized disclosure by lawyer AND others under lawyer’s supervision (i.e. subordinate lawyer, paralegal, secretary) [MR 1.6 C.16] More leeway w/ transmission of confidential communications (i.e. email), required to take only reasonable precautions, NOT special security measures (i.e. computer getting hacked)… … BUT, particularly sensitive info may increase degree of reasonableness [MR 1.6 C.17] Recipient of accidentally-transmitted confidential info (who knows OR reasonably should know that info IS confidential, was inadvertently sent) shall promptly notify sender [MR 4.4(b)] Steps to be taken after notification (i.e. returning of document(s), court order preventing recipient from using info) depend on local rules ONLY applies to inadvertent transmission/receipt (NOT “whistle blowers”) Fraudulent Claims and Confidentiality Again, lawyer NOT required to disclose confidential info (NOT violating any rules by choosing not to)… … BUT, should seek to persuade client to take suitable action to obviate the need for disclosure, AND shouldn’t disclose more than necessary [MR 1.6 C.14] Factors for lawyer to consider [MR 1.6 C.15]… Nature of lawyer’s relationship w/ client, others who might be injured by client Lawyer’s own involvement in the transaction Continuing to represent fraudulent client… Lawyer may withdraw if client has used lawyer’s services to commit past crime/fraud [MR 1.16(b)] Lawyer must withdraw if continued representation will violate ethical rules (ongoing crime/fraud) [MR 1.16(a)] CONFLICTS OF INTEREST: THIRD PARTIES Lawyer shall NOT represent a client if involving a “concurrent conflict of interest” (potential OR actual) [MR 1.7(a)/CRPC 3-310(C)] A concurrent conflict of interest exists if there is a significant risk that representation of one client will be materially limited by lawyer’s responsibilities to another/former client OR third person [MR 1.7(a)(2)] examples…
Lawyer MAY suggest self (OR associate) as executor of a will [MR 1.8 C.8]… BUT, still subject to concurrent conflict of interest Lawyer’s Attraction to Client Lawyer shall NOT have sexual relations w/ client unless such a relationship preceded commencement of lawyer-client relationship [MR 1.8(j)/CRPC In CA, post-LCR sexual relations NOT OK if required/demanded as condition, coercion/intimidation/undue influence, OR continuing such sexual relations after they have caused lawyer to perform legal services incompetently [CRPC 3-120(B)] Other lawyers within firm who are NOT representing client are NOT subject to same prohibition [MR 1.8(k)/CRPC 3-120(D)] Lawyer’s relationship w/ opposing counsel In MR, lawyer “ordinarily may not” represent client in matter when opposing counsel is related (parent, child, sibling, OR spouse)… unless informed consent from each client [MR 1.7 C.11] In CA, lawyer shall NOT represent when opposing counsel is related, lives w/ lawyer, is client of lawyer, OR has intimate personal relationship w/ lawyer… unless client is informed in writing [CRPC 3-320] CONFLICTS OF INTEREST: BETWEEN CLIENTS Conflicts w/ Former Clients Lawyer who has formerly represented a client shall NOT represent another person in the same/substantially related matter in which person’s interests are materially adverse to former client [MR 1.9(a)]… … unless informed consent from former client… OR, in CA, “informed written consent” [CRPC 3-310(E)] When substantially related, assumed that lawyer has confidential info [MR 1.9 C.3] Rosenfeld factors to determine if matters are substantially related… Factual similarity Legal similarity Nature/extent of attorney’s involvement w/ case Even when matters are wholly unrelated, lawyer may NOT represent someone directly adverse to current client [MR 1.7 C.6]
Under MR… In CA… Advising client to engage in fraudulent/criminal conduct… NO [MR 1.2(d)] NO, unless good faith belief in law being invalid [CRPC 3-210] Disclosing info re: Bar applicant… Must disclose [MR 8.1] NO duty to disclose if not called upon as reference [CRPC 1-200(B)] CA lawyer practicing out of state w/o admission in state… If other state follows MR, subject to discipline there [MR 8.5(a)] Subject to discipline in CA [CRPC 1-100(D)(1)] Temporarily representing client out of state w/ local associate who actively participates… OK [MR 5.5(c)(1)] NO such counterpart in CA Non-CA lawyer, temporarily in CA, providing legal services in “transaction or other nonlitigation matter” (NOT including arbitration)… N/A (b/c in CA) OK [Cal. Rule of Court 9.48] Representation of the “defenseless” or “oppressed”… Should not be denied [MR 1.2 C.5]… responsibility for pro bono [MR 6.1]… BUT, may reject those whose cause is repugnant [MR 6.2 C.1] Duty of lawyer never to reject [B&P 6068(h)] Withdraw from representation b/c client isn’t paying bill (OR breaching some other contractual obligation)… May request withdrawal ONLY if client has been given reasonable warning [MR 1.16(b)(5)] May request withdrawal [CRPC 3-700(C)(1)(f)] Settling legal malpractice claim in exchange for client NOT reporting to state bar… NO such counterpart in MR NO [CRPC 1-500(B)/B&P 6090.5] General rule re: all fees… Must not be “unreasonable” [MR 1.5(a)] Must not be “illegal or unconscionable” [CRPC
Factors considered re: fees (NOT including factors shared by MR and CA, i.e. time/labor required, novelty of issues, etc.)… Customary fee [MR 1.5(a)] Informed consent of client, amount of fee in proportion to value of services, relative sophistication of parties [CRPC 4-200(A)] Fee arrangement in writing… Preferably, w/ basis communicated before OR reasonably after commencement of representation [MR 1.5(b)] Must be if over $1,000, include basis, nature, responsibilities [B&P 6148(a)]… unless client waiver, pre-existing client/ implied waiver, emergency, corporation [B&P 6148(d)] NO contingency fee allowed in… Domestic relations matters (where divorce/alimony/ child support is pending), criminal Ds [MR 1.5(d)] NO such counterpart in CA, BUT still generally followed (domestic relations covered in Family Code) Statement in contingency fee agreement that fee is negotiable b/w lawyer and client… NO such counterpart in MR Required, unless fee is NOT negotiable (i.e. medical malpractice) [B&P 6147(a)(4)] Pro bono service… Lawyer should aspire to render 50 hrs./yr. [MR 6.1] An obligation (NOT a requirement, though some firms may require) Revealing confidential information… If client gives informed consent [MR 1.6(a)]… OR, to prevent reasonably certain death or substantial bodily harm, crime/fraud reasonably certain to substantially injure another’s financial/property interests for which client has used lawyer’s services, OR such injury from client’s commission of crime/fraud [MR 1.6(b)] If client gives informed consent [CRPC OR, to prevent criminal act reasonably believed to likely result in death or substantial bodily harm [CRPC 3-100(B)] (NO crime/fraud exception, AND substantial bodily harm exception applies ONLY to criminal acts) Privilege from disclosing confidential communications b/w lawyer and client… Lawyer ONLY [MR 1.6(b)(6)] Lawyer AND client [CEC 954]
Lawyer representing client despite concurrent conflict of interest… Reasonably believes in ability to do so, NOT illegal, NOT involving clients making claims each other, AND clients’ “informed consent confirmed in writing” [MR 1.7(b)] Same as in MR, except clients’ “informed written consent” [CRPC 3-310(A)] Lawyer accepting client’s fees from 3rd party… NO interference w/ lawyer’s professional judgment and relationship w/ client, information protected by confidentiality, AND client’s “informed consent” [MR 1.8(b)] Same as in MR, except client’s “informed written consent” [CRPC 3-310(F)] If lawyer representing organization discovers constituent’s illegal actions… Lawyer must refer to higher authority, unless not necessary under circumstances (i.e. NOT in best interest of organization) [MR 1.13(b)] Lawyer MAY refer to higher authority (may also urge reconsideration, OR may do nothing) [CRPC If lawyer representing organization informs higher authority about constituent’s actions, and authority does NOT take action… Lawyer may reveal confidential information if reasonably believed to prevent substantial injury to organization [MR 1.13(c)] Lawyer must withdraw (may NOT reveal) [CRPC 3-600(C)] Lawyer purchasing property for client, OR representing seller when buyer is related to lawyer/co-worker… NO such counterpart in MR (likely would be OK if meeting requirements for business transaction b/w lawyer and client [MR 1.8(a)]) NO [CRPC 4-400] (other business transactions b/w lawyer and client must meet same requirements as MR [CRPC 4-300]) Lawyer paying court costs/expenses of client… OK as advance (MAY agree to be repaid contingent on outcome), OR if client is indigent [MR 1.8(e)] OK as advance (MAY agree to be repaid contingent on outcome)… also, may loan $$ after employment w/ promise to repay in writing [CRPC 4-210]
Lawyer acting as advocate and witness… NO, unless testimony re: uncontested issue or nature/ value of legal services, OR disqualifying lawyer would substantially hardship client [MR 3.7(a)] NO, unless testimony re: uncontested issue or nature/ value of legal services, OR client gives informed written consent [CRPC Lawyer having sexual relations w/ client… NO, unless sexual relationship precedes lawyer-client relationship [MR 1.8(j)] NOT OK if required/ demanded, coerced/ intimidated, OR continued after causing incompetence [CRPC 3-120] Opposing counsel related to lawyer… NO, unless client gives informed consent [MR 1.7 C.11] NO, unless client is informed in writing [CRPC 3-320] (also includes living w/, being client of, AND having intimate personal relationship w/) Lawyer representing client in same/substantially related matter as former client w/ materially adverse interests… NO, unless former client gives “informed consent” [MR 1.9(a)] NO, unless former client gives “informed written consent” [CRPC 3-310(E)] Who lawyer may solicit… Another lawyer OR family, close personal, or prior professional relationship [MR 7.3(a)] Family or prior professional relationship [CRPC Prohibited as solicitation if significant motive is pecuniary gain, AND… “in-person, live telephone or real-time electronic contact” [MR 7.3(a)] “delivered in person or by telephone” [CRPC Reciprocal referral agreements… OK, so long as NOT exclusive, AND client informed of agreement [MR 7.2(b)(4)] NOT permitted [CRPC Statement in advertisement/ solicitation re: lawyer being “certified specialist”… Must be certified by organization approved by ABA or state authority, AND name of certifying organization must be ID’d [MR 7.4(b)] Must be certified by Board of Legal Specialization [CRPC 1-400(D)(6)]
Chat room communication Subject to general ban NOT subject to general ban (NOT “in person or by telephone”) Email communication NOT subject to general ban Telemarketer communication Subject to general ban (even though NOT the actual lawyer) Leaflets Borderline b/w “in person” and “written communication” Subject to general ban (“delivered in person”)