PROFESSIONAL RESPONSIBILITY

DUTIES TO CLIENTS DUTIES TO OTHERS

(1) CONFIDENTIALITY (1) CANDOR/TRUTHFULNESS

(2) LOYALTY (2) FAIRNESS
(3) FINANCIAL RESPONSIBILITIES (3) DIGNITY/DECORUM
(4) COMPETENCE (4) DUTY TO EXPEDITE
(5) DILIGENCE (5) DUTIES TO SUBORDINATES
(6) COMMUNICATION (6) DUTY TO PRODUCE EVIDENCE
(7) REASONABLENESS (7) DUTY TO UPHOLD LAW

DUTIES TO CLIENTS
DUTY OF CONFIDENTIALITY TO CLIENT

1. RULE: Attorney can’t reveal anything related to the representation of the client or use that information against her w/o her
consent
a. SCOPE: applies to EVERYTHING. Must use reasonable electronic security
b. Duty can attach before A-C client relationship formed
c. Waivers = be skeptical about whether the average person would understand
2. EXCEPTIONS:
a. (1) Consent – includes implied consent to reveal what’s necessary to render legal services
b. (2) Defense – If client (a) sues for malpractice, (b) brings disciplinary action against attorney, (c) refuses to pay,
then may reveal confidential info necessary to establish claim/defense
i. NOTE: ABA also permits for seeking ethical opinion
c. (3) Compelled by Final Crt Order, Law, or Other Ethical Duty – may disclose non-privileged, minimal info for
conflicts check
d. (4) To Prevent Death/Substantial Bodily Harm – may reveal what’s necessary to prevent act if reasonably believe
will prevent substantially certain death/substantial bodily harm (permissive NOT mandatory)
i. (a) If reasonable, must make good faith effort to persuade client not to commit act
ii. (b) CA – if reasonable, must also inform client of decision to reveal confidences
e. (5) Fraud/Crimes Causing Financial Injury – if client using services to commit crime AND disclosure would
prevent/mitigate substantial financial loss
i. ** CA – no financial injury exceptions to duty of confidentiality

DUTY OF LOYALTY TO CLIENT (Conflicts of Interest)

1. Attorney’s owe a duty of loyalty to their clients

2. RULE: Conflict arises if representation is directly adverse to another client OR if there is a significant risk that your
representation will be materially limited by relationship to another current/former client, person interest, or a third person
a. NOTE: ignorance of conflict is no excuse
3. Imputed Disqualification
a. any group of attorneys working closely together/share responsibilities also share each other’s conflicts.
b. Can be avoided with screening
c. Uniquely personal conflicts are NOT imputed to colleagues
4. Remedies
a. Refuse to take case, withdraw, advise clients to get separate counsel
5. Different Conflicts
a. Some ok
b. Some nonconsentable
c. Some Consentable if:
i. (1) reasonably believe can represent everyone effectively
ii. (2) inform each affected client; AND
iii. (3) client consents, confirmed in writing
**CA – requires both disclosures AND consent must be in writing
CONFLICTS BETWEEN/AMONG CLIENTS

1. (1) Representing Opposite sides in same proceeding (transactional/litigation) = Never OK

2. (2) Opposing Current Client in another matter = OK w/ informed, reasonable consent from all clients
a. **CA: can represent policyholder + insurance company if adverse if insurance only there for indemnity
3. (3) Two clients w/ inconsistent positions = OK
4. (4) Representing Multiple Clients in same Matter = Maybe OK
a. But usually raises significant risks that service may become materially limited
5. (5) New Clients in matters related to Former Clients = Maybe
a. RULE: cannot take new client in same/substantially related matter where client’s interests are materially adverse to
former client w/o former client’s consent
b. If confidential information from former client might be relevant to new client’s matter, may violate continuing duty
of confidentiality + loyalty to former client
6. (6) Former Gov’t Lawyer Moves to Private Practice
a. RULE: if gov’t lawyer worked personally and substantially on matter, cannot work on same matter later in private
practice w/o gov’t’s consent
b. Writing regulations doesn’t count
c. To avoid imputing disqualification to firm, must:
i. (1) be screened off
ii. (2) do not share any part of fee in matter
iii. (3) gov’t informed
d. Third party neutrals :
i. Includes judges, clerks, arbitrators
ii. Must have consent of all parties

CONFLICTS BETWEEN LAWYER AND CLIENT

1. (1) Gifts to Lawyer

a. Attorneys must not solicit substantial gifts from client or draft a legal instrument for client who is NOT your close
relative if it provides a substantial gift to you or your relative
2. (2) Limiting Liability
a. Cannot limit client’s right to report you for professional misconduct or to cooperate in an investigation
b. Cannot limit malpractice liability UNLESS client is independently represented in making agreement
i. **CA bars malpractice limits
c. If client makes malpractice claim, can only settle after provide written advice to client to consult w/ outside lawyer
3. (3) Use of Information
a. Use of confidential information to a client’s disadvantage without her consent violates the duties of both loyalty
AND confidentiality
4. (4) Business Transactions/Adverse Interests
a. First Discuss Over Coffee RULE: may enter into business w/ client or obtain interest adverse to hers ONLY IF:
i. (a) the terms are Fair to the client;
ii. (b) Disclosed in understandable writing;
iii. (c) the client is advised to consult w/ Outside attorney; AND
iv. (d) client provides Consent in a signed writing
b. Transactions:
i. Payment for legal services in shares/interest OK if fair and reasonable under circumstances known to the
lawyer when the interest was acquired
c. Board Service:
i. Service on board of directors of a non-profit legal services organization is allowed.
ii. Can also serve on board of corporate client but this is discouraged
5. Publication Rights Contracts:
a. ABA: Ok only after representation has ended
b. **CA: Ok during proceedings if judge is satisfied that client clearly understands and consents
6. Loans to Client
a. ABA: forbids ALL financial assistance, except litigation expenses for an indigent client and advances of litigation
expenses which may be forgiven under a contingent fee arrangement.
b. **CA: allows loans to a client in all matter for any purpose w/ a written loan agreement.
 7. Trial Counsel as a Necessary Witness
a. ABA: Cannot appear as counsel and witness in the same trial. Exceptions:
i. (a) Testimony uncontested
ii. (b) Testimony about legal services rendered
iii. (c) Attorney’s distinctive value to case means that withdrawal would impose substantial hardship on client.
b. **CA allows the dual role in any case w/ client consent
8. Close Relationship W/ Adversary’s Lawyer
a. RULE: If opposing party represented by your immediate family, must have consent of ALL clients
b. Immediate Family = parent, child, sibling, spouse (**CA includes other intimates and co-habitants)
c. **CA also requires written disclosure of any personal, legal, business, financial, or professional relationship
you or your colleagues have w/ any party or witness
9. Sex w/ Client
a. No sex w/ client unless relationship predated representation
b. **CA also excuses married/domestic partners

CONFLICTS DUE TO 3RD PARTY INTERFERENCE

1. General Rule: Sole duty is to client, not to any third party

2. Payment for services from third party permitted only w/ informed client consent. Confidences cannot be shared.
3. Organizational Clients
a. RULE: Must act in best interests of entity, even if an officer, employee, or other associated person acts to contrary
b. Federal Laws Governing Securities Lawyers
i. (1) Mandatory Reporting: If discover material violations of securities laws, MUST report to CEO/Chief
Legal Counsel. If they do not respond, must go to the highest authority in company.
ii. (2) Permissive Reporting: If reasonably believe it necessary to prevent fraud, perjury or substantial injury
to organization/investors, or to rectify financial injury from a violation that involved your services, then
MAY disclose confidential information to SEC w/o client consent
iii. NOTE: CA forbids reporting out but is preempted

FINANCIAL DUTIES TO CLIENT

1. Attorney Fees
a. Noncontingent Fee Cases: Agreements MUST include:
i. (1) how fee is calculated
ii. (2) what services are covered
iii. (3) lawyer and client duties
iv. **CA also requires agreements be in writing UNLESS
1. (a) fee is for $1000 or less;
2. (b) corporate client;
3. (c) routine services for regular client; OR
4. (d) emergency/impractical
b. Contingent Fee Cases: Agreements MUST also:
i. (1) be written and signed by client
ii. (2) explain attorney’s percent;
iii. (3) what expenses will be deducted from recovery;
iv. (4) whether percent is taken before or after expenses
v. **CA also requires agreements state:
1. (a) how work not covered by contingency fee will be paid AND
2. (b) that lawyers’ fees are negotiable
vi. LIMITS
1. Contingent fees not allowed in criminal and domestic relations cases
2. BUT, are allowed in collateral actions to collect post-judgment orders in domestic orders (like
collecting child support)
vii. Termination before Contingency/Judgment
1. Attorney can recover fees in quantum meruit
c. Limits on Fees
 i. ABA: fees must be reasonable taking into account the labor, novelty, difficult, skill and timing required,
result obtained, the experience of and other demands on the attorney, fee arrangement, etc.
ii. **CA: Fees must NOT be unconscionably high
d. Double Billing
i. ABA: unreasonable and dishonest
ii. **CA: allowed if:
1. (a) fee charged to each is not ‘unconscionable’;
2. (b) attorney clearly disclosed the billing practice at the outset of the relationship; AND
3. (c) obtained client’s consent
e. Arbitration if Client Disputes FEE
i. ABA Encourages
ii. **CA Requires it if Client sues and requests it
f. Fee Splitting
i. OK to split fees w/ lawyers in your firm
ii. MAYBE OK to split fees with lawyers outside your firm ONLY IF the total fee is ethical and not increased
due to the sharing. MUST have in writing:
1. (a) agreement between lawyers
2. (b) disclosure to client
3. (c) client’s consent
4. **ABA also requires fee division be proportional to work done, unless jointly responsible
iii. NOT OK to split fees w/ non-lawyers. Exceptions:
1. (a) death benefits paid to deceased attorney’s firm or heirs;
2. (b) non-lawyer employee’s salaries; AND
3. (c) sharing of court-awarded legal fees w/ non-profit org that employed/recommended you
4. Referrals: may pay usual charges for lawyer referral services and reciprocal referrals w/ other
professional OK if not exclusive AND explained to client
g. Partnerships W/ non-lawyers in providing legal services is PROHIBITTED
i. Non-lawyers Can’t be partners, shareholders, officers, etc.

2. Client Trust Accounts

a. Attorney has duty to safeguard client’s property by labeling and storing in safe place
b. Must put client’s money in client trust account
c. No borrowing/commingling
d. Account must be interest bearing trust account and interest after bank charges belongs to client
e. If client funds too small to cover bank charges, can be deposited in pooled client trust account, interest to State Bar
for services for poor.
f. Attorney has duty to keep client ledgers, render accountings, notify client of moneys received on his behalf, pay
promptly money due. Have to keep records of client property for 5 years

DUTY OF COMPETENCE & OTHERS TO CLIENT

1. Duty of Competence
a. Attorneys have a duty to render competent service to clients.
b. ABA: Competence = using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation
c. **CA: lawyer must not intentionally, recklessly or repeatedly fail to perform legal services with competence
d. Consequences:
i. (a) Discipline by Bar
ii. (b) Disqualification in Legal Matter
iii. (c) Civil Malpractice Liability
2. Duty of Diligence
a. Attorneys have a duty to diligently and promptly pursue case to completion
3. Duty to Communicate
a. Attorneys have a duty to keep client informed about case, answer client communications, and convey settlement
offers or other significant developments
4. Accepting Representation
a. Attorneys free to accept/reject any case
 b. Must reject case if accepting would violate law/ethical ruled
5. Scope of Representation
a. Client makes decisions about her substantive rights (testifying in criminal case, accepting plea/settlement)
b. Attorney makes decisions on legal strategy
c. Can limit scope w/ client consent
d. Can discuss legal consequences but never assist client w/ criminal conduct/advise how get away w/ illegal conduct
6. Duty of Withdrawal from Representation
a. Mandatory Withdrawal: must withdraw:
i. (1) if fired;
ii. (2) if continuing would violate law/ethical rule (ex. physical/mental condition);
iii. **(3) CA – must withdraw if client acts w/o probable cause to harass or maliciously injure another
b. Permissive Withdrawal: may withdraw if convince court there is good cause, includes:
i. (1) client persisting in criminal/fraudulent course of action
ii. (2) client makes representation unreasonably difficult
iii. (3) client fails to fulfill obligation to attorney after reasonable warning
iv. (4) **ABA also allows if continuing rep = unreasonable financial burden or if won’t hurt client’s
interests
c. Procedure; MUST:
i. (1) timely notice to client
ii. (2) Promptly return any unspent fee and expense advances and all of client’s property and material papers
including attorney work product
1. **CA forbids holding client’s material hostage for payment
7. Duty to be reasonable and sensible
8. Duty to promote public confidence in the integrity and efficiency of the legal system and profession

DUTIES TO OTHERS
DUTIES OF CANDOR TO PUBLIC/DIGNITY OF PROFESSION (Advertising/Solicitation)

1. Advertising
a. Must not be false/misleading
b. Omitting material information can be misleading
c. Must not raise unjustified expectations or make unverifiable comparisons
d. **CA presumes improper any ad that contains guarantees, warrantees, or a prediction of a result
i. No testimonials/endorsements unless disclaimer that not GWP
e. Claims of Legal Specialities
i. Can explain fields of practice
ii. No claims of legal specialization UNLESS certified specialist and ad identifies certifying org
iii. **CA requires 4 Es:
1. (1) Experience
2. (2) Evaluations
3. (3) Education
4. (4) an Examination
f. ** CA requires most ads be labeled and, if applicable, identified as “dramatization,” or “impersonation”
2. Solicitation
a. General Rule: Attorneys cannot seek professional employment for pecuniary gain by initiating a live or telephone
contact with a specific person w/ whom the attorney has had no prior professional, personal or family relationship
b. Only restricted to live auditory/visual contact
c. Agents can’t do anything that a lawyer can’t do

DUTY OF CANDOR TO COURT & FAIRNESS TO ADVERSARY

1. General Rule: Attorneys cannot engage in conduct involving dishonesty, fraud, or misrepresentation.
a. This duty trumps duties of confidentiality and loyalty to clients
2. General Rule: Attorneys have a duty to present facts and evidence truthfully. They must not make a false statement material
fact or offer evidence they know is false to a tribunal, or fail to correct a false statement of material fact or law that you
previously presented
 3. Client Perjury:
a. (1) Civil Case
i. Must refuse to call a witness, including client, if know they intend to perjure themselves
b. (2) Criminal Case
i. Ds have 5th Amendment right to testify on their own behalf and 6th Amendment right to effective assistance
of counsel.
ii. If know client intends to lie, must take reasonable remedial measures. Steps:
1. (1) Counsel client to testify truthfully or not to take the stand. If that fails:
2. (2) Attorney may attempt to withdraw from the case. If that fails:
3. (3) ABA: Tell the judge (right to counsel/duty of confidentiality do not shield perjury)
**CA: allow defendant to testify in narrative fashion
4. Witnesses
a. Must not counsel/assist witness to testify falsely or to become unavailable
b. May pay basic expenses of a witness and reasonable fees for expert witnesses as long as payment is not contingent
on the content of the testimony
c. If know witness intends to lie, cannot put them on the stand.
5. If do not know, but only reasonably believe, that testimony is false, above rules are permissive.

DUTY TO PRODUCE EVIDENCE

1. General Rule: Attorney must not suppress any evidence that they or their client has a legal obligation to reveal or produce,
regardless of duty of loyalty. Attorneys must not obstruct access to or tamper w/ fruits or instrumentalities of a crime
a. Remember to draw the line between physical evidence and confidential information
2. Interference w/ Evidence
a. Attorneys may be compelled to testify as to original location or condition of evidence that she moved or altered
b. Look But Don’t Touch
3. Prosecutors
a. Prosecutors have a special duty to timely disclose evidence favorable to the defense, regardless of admissibility or
impact on outcome
b. Higher ethical duty to seek justice. Must have probable cause.

DUTY TO STATE LAW TRUTHFULLY

1. Knowingly making a false statement of law or presenting frivolous claims or defenses to the court is subject to discipline.
2. Must cite adverse authority if on point.

DUTY TO UPHOLD THE LAW

1. Rule: If continued representation would require you to commit or assist in committing a crime, you MUST withdraw
2. Rule: If client persists in criminal acts, buy you are not assisting, you MAY withdraw.
3. Preventing Client from Committing Crime
a. (1) If client is going to commit an act reasonably likely to result in reasonably certain death/substantial bodily harm,
disclosure is permitted.
i. **CA: see above additional safeguards before disclosure
b. (2) If client’s crim or fraud would only cause substantial financial loss, and services employed in it:
i. ABA: permits disclosure
ii. **CA: forbids disclosure (federal securities laws preempt in part)

DUTY OF FAIRNESS

1. General Rule: Attorney has a duty to behave honestly in all dealings (in and out of legal practice)
2. Dealing Fairly W/ Others
a. (1) Discrimination: Cannot harass, discriminate on the basis of a protected characteristic, or retaliate unlawfully
b. (2) Extortion: Cannot uses threats of disciplinary, administrative, or criminal proceedings as leverage in civil case
c. (3) Documents Sent Inadvertently: If receive document from opposing counsel that you know was inadvertently
sent, or sent intentionally but anonymously, must promptly notify opposing counsel
i. **CA: rule applies only to material shielded by privilege or work product. Must stop reading as soon
as realize that it is. Can mine metadata.
 d. (4) Communication w/ Adversaries/Third Parties: attorneys must not lie to people or mislead the as to your interests.
Must not violate legal rights of person to obtain evidence or use means w/ no purpose but to delay, burden, or
embarrass them
e. (5) Communication w/ Represented Entities: Must not communicate w/ person know represented by counsel on
subject of your inquiry w/o consent of person’s counsel unless authorized by law or giving 2nd legal opinion
i. Corporations: prohibition covers any current employee whose communication might bind or be imputed to
organization or constitute an admission on it part.
**CA: consent also required for interviews of an officer, director, or managing agent.
3. Dealing W/ Press
a. Rule: Attorneys have a duty not to interfere w/ a defendant’s right to a fair trial.
b. Rule: Attorneys and their agents must avoid out-of-court statements that you reasonably should know have a
substantial likelihood of materially prejudicing the case
c. Exceptions:
i. (1) matters of public record/routine booking
ii. (2) warning to the public
iii. (3) informing of ongoing investigation
iv. (4) mitigate undue prejudice to client from publicity you didn’t start
d. Prosecutors and aides must not make comments that have a substantial likelihood of heightening public
condemnation of the accused.

PRESERVING DIGNITY OF COURT & ADDITIONAL DUTIES

1. Duty to Preserve the Decorum and Impartiality of Tribunal

a. (1) Must not influence anybody improperly.
i. Must not talk to any prospective/impaneled juror. After trial over, may interview consenting jurors
b. (2) No chicanery; No trial theatrics
i. Referring to inadmissible material, matters unsupported by evidence, asserting PK of facts at issue
c. (3) Must preserve tribunal’s decorum
i. Refrain from noisy, out-of-control conduct, belligerence, or theatrics.
2. Duty to Expedite Cases
a. ABA: duty to expedite Cases
b. **CA: must not delay cases to harass an adversary, or for own personal gain/convenience
c. Duty to follow valid procedural rules and court orders, unless you are making a good faith challenge to their validity
3. Additional Duties to Profession & Public
a. To protect public from incompetence, the unlicensed or unauthorized practice of law is forbidden.
b. ABA: Can temporarily practice out-of-state if in good standing in state and associate w/ locally admitted lawyer who
actively participates in the matter OR services relate to alternative dispute resolution OR the matter is reasonably
related to your home state practice and the forum does not require pro hac vice appearance
c. **CA: lawyers required to register w/ CA bar, pay dues, get CLE, and subject to CA ethics rules.
4. Policing Misconduct
a. ABA – must report to appropriate authority any other lawyer’s or judge’s violation of Rules in legal/non-legal
context if it raises a substantial question as to person’s honesty, trustworthiness, or fitness as a lawyer
b. **CA – no requirement for external reporting but can be disciplined for knowing about colleague’s violation
and doing nothing to prevent it. Also required to self-report if:
i. (1) charged w/ felony
ii. (2) convicted of serious crimes
iii. (3) found civilly liable for fraud/breach of fiduciary duty
iv. (4) disciplined/sanctioned
v. (5) sued for malpractice 3x in a year

DUTIES OF/TO SUBORDINATE LAWYERS

1. Subordinates: if under control/supervision of another attorney who ratifies or orders you to take action violating an ethical
rule, will not be subject to sanctions IF debatable problem.
2. Superiors: If ratified action/knew of conduct and failed to take action, then in violation
3. Managing Partners: duty to make reasonable efforts to ensure that the conduct of all firm employees or outsourced workers
comports w/ the professional obligations of a lawyer, including non-lawyer assistance.