PR Test Outline: CA Legal Ethics by Wydick & Perschbacher
  1. Ethics & Legal Ethics (Chp 1)
    1. Evid. That May B Good 4 Other Side
      1. According 2 ABA Model Rule (3.8), can't unlawfully destroy / conceal doc's that have potential evid. value
      2. So atty should not assist 2 destroy & ethically seems to make sense (Kantian, golden rule, & utilitrian w/happiness 4 all)
    2. Split on Legal Ethics 4 Appt'ing Conservator 4 Drug Addicted Client
      1. ABA Model Rule allows atty 2 seek appt of conservator
      2. Other rules say it's conflict of int. so can't rep.
    3. Duty of Atty When Client Asks 2 Join 4 Furture Crime
      1. No ethical duty 2 keep it confidential
      2. But tolerated by ABA rules 2 not tell future crime
  2. Legal Ethics (Chp 2)
    1. Reqts 4 Bar of CA
      1. Go 2 accredited law school / get apprenticeship
      2. Pass bar exam & multi state exam
      3. Need 2 B 18 yrs. / more
      4. Good moral charact.
        1. Competence, honesty, integrity, respect 4 law & rts of others, trustworthiness, & fairness
        2. If in past committed crime, will scrutinize 2 see if rehabilitated by staff & maybe hrg in front of panel of judges from state bar ct
        3. Must discl. info on applic. / could B ground 4 denial
    2. Bar Ass'n Fn's
      1. B a member 2 pract. law
      2. Can discipline members
      3. Accredit law school
      4. Cont'ing legal ed. reqts
      5. BUT no lobbying by Sup Ct b/c members might not agree w/polit. dec's
      6. Can only do things that reg's members
    3. Reqts 4 Fed. Cts
      1. Sep. bar from state & apply 2 B admitted
      2. Dist Ct & 9th circ
        1. Bar of any state &
        2. Good moral charact.
      3. US Sup Ct
        1. Practice in ct. 3 yrs
        2. No disciplinary axn
      4. Patent
        1. Pass patent bar
    4. Reqts 4 Pract'ing in Dif. State
      1. Pass bar of the state U wanna pract. / rep. client in OR
      2. If there's reciprocity arr., then not have 2 take another bar exam
        1. Ex of reciprocity would B if CA admit AZ atty w/o bar exam, then AZ will do same 4 CA
        2. CA not have this arr.
      3. Pro hac vice
        1. Get admitted only 4 1 case
      4. If want 2 open a branch office, then need 2 list jxn'al limit
    5. Atty's Gov'ing Themselves
      1. ABA model code & rule says atty has oblgn 2 gov. ourselves so must report atty 2 approp. disciplinary stuff if immoral turpitude
      2. CA gives no such duty b/c thinks not an enforceable reqt & instead req's that U report yourself
    6. Disciplinary Axns
      1. If pract. in dif. state, state which U pract'ed & where U have membership can both discipline U
      2. Proced.
        1. Hears complaint
        2. Contact atty & charge
        3. Sep. committee investig. the complaint
      3. Punish's
        1. Can B disbarred if serious
        2. Can B suspended in which case must write a letter 2 all clients that can't pract. during suspension per.
  3. Atty Client Rel. (Chp 3)
    1. Duty 2 Take Cases
      1. Gen'ly not have 2 take every case b/c atty not pub. utility
      2. Exception 2 gen. rule if
        1. Client has cause of defenseless / oppressed
        2. Ct appt's U
    2. Excuses 4 Taking Cases
      1. If somebody who is defenseless & oppressed comes 2 U, then can probably turn down if conflict of int. (like rep'ing other side already) but can't turn down b/c of pers'al stuff
      2. If ct appt's U, need compelling rsn not 2 take it
        1. ABA Model Rule says must rep. client competently so if can't, then good excuse 2 turn down
        2. If violate any law / disciplinary rule
        3. If maj. fin. prob. not just min. inconvenience
    3. Pro Bono Work
      1. Aspire 2 do 50 hrs but not mandatory duty
    4. When Not 2 Take Cases
      1. Conflict of int.
      2. Illegal
      3. Frivolous claim
    5. Firing Atty
      1. Client gen'ly can fire atty any X (time) 4 any rsn
      2. But ct. can prevent firing old atty / getting new 1 if impose burden (like before trial / during trial)
      3. When atty fired, quantum meruit applies 4 contingent fee cases if get $ from case by settlement / jgmt but if there's K, then capped by K
    6. Can't W/Draw But MUST W/Draw When
      1. Client is using atty 2 harrss / delay
      2. Atty becomes mentally / phys'ly unable 2 cont.
      3. Cont'ing case would req. viol'ing law / DR
  4. Ad & Solicit
    1. No Face 2 Face Solicitation
      1. If initial inquiry comes from client o.k.
      2. Can do soc. stuff but can't puruse busi. / initiate rendering legal service
      3. Can call other atty's 4 work as long as not solicit clients dir'ly
      4. Can have referral serv.
    2. Seminars
      1. Should teach gen. legal princ., not give specif. legal advice
    3. Volunteer
      1. Can vol. legal serv. 4 any cause as long as no pecuniary gain
    4. Ad
      1. Limit on media (newspaper o.k.)
      2. Forbid false & misleading ads
      3. If not false / misleading, can reg. ad if (interm. scrutiny)
        1. Subst'l state int. 2 do so
        2. Reg. materially advance state int.
        3. Reg. is narrowly taiolred
      4. Pub. brochure
        1. Can B mailed out if say it's ad
        2. Can give it out in office if somebody asked 4 it
        3. But can't hire others 2 hand them out on st. b/c soliciting
      5. Direct Pers'ed Form Letters
        1. Shapero Case said o.k. but Went 4 It Case sugg. going other way by applying 3 part test
      6. No Phone Calls
        1. More intrusive than junk mail b/c not hang up so o.k. if recorded phone msg saying it's ad
  5. Atty Fees & Fid. Duties
    1. Rsbl Charge
      1. Fig. out hrs/yr that's billable
      2. Yr'ly overhead & div. by billable hr
      3. Guess how much income / yr & div by hrs billed = income / hr
      4. Income / hr + overhead = rsbl charge
    2. Conting. Fee Arr.
      1. If K, then about 35%
        1. Unless subj. jgmt may have 2 B used in which case, 'er fee maybe
      2. If pers. injury, 20% if settle, but 40% if trial
      3. Reqts
        1. Written
        2. Specify how 2 treat expenses of litig.
      4. Dif. Cases & conting. fee
        1. ABA code says divorce rarely justifiable, ABA model rule prohibits conting. fee in marital cases (divorce cases)
        2. ABA model rule forbids conting. fee 4 crim. defense
    3. Lending $ 2 Clients
      1. ABA model rule allows realistic view that allows payback of advance expenses conting. on outcome of cases in pers. injury cases
      2. Although in CA can lend $ 4 anything, ABA only allows loans 4 expense of litig.
    4. Fee Split if 2 Atty's Work Together
      1. Client consent in written agmt that aware 2 attys will work together & will split fee
      2. Fee has 2 B rsbl 4 amt of work done
      3. Split has 2 B proportionate 2 work done & resp. assumed by 2 attys unless each atty takes jt responsibility
    5. Collecting Fee from Jgmt
      1. Put jgmt in trust & notify client
      2. After client o.k's, jgmt partitioned 4 client & atty
    6. Fee That Might B From Crim.
      1. If any cash 'er than $10,000, must notify IRS
      2. Could B felony 2 accept if knew / should've known was acquired by crim.
  6. Competence, Diligence, & Unauth'ed Pract. (Chp 6)
    1. Incompetence Disciplined
      1. ABA Model Rule probably won't discipline unless egregious & state that expect atty 2 do things reg'ly ed'ed & which diligent atty does
      2. If take on case where not competent & neglect 2 do it diligently, then incompetent
    2. Malpract.
      1. Judges immune from malpract. as long as act in jud. capacity but cna take 2 commission on jud. perf. 4 delay longer than it should
      2. Atty's can't B sued 4 tactical dec's as long as well informed
      3. Grounds 4 Malpract.
        1. If firm's mgmt negligent, ABA model rule says firm can B negligent b/c supervising people can B disciplined
        2. Failure 2 do common research where rsbly prudent atty would've done it
        3. Failure 2 prepare properly
        4. Failure 2 discov.
        5. Failure 2 use resources available by obj. stand. of community
    3. Conflict of Int.
      1. If rsbly prudent atty would have advised not 2 consent conflict of int. away, then can't rep. both sides
    4. Lawfirm w/Non-Lawyers
      1. Nonatty can do work under supervision of atty
      2. Can't share legal feew w/nonatty
        1. Except 4 retirement & pension
      3. Nonatty can't B Shareholder (SH) in corp. law firm
  7. Confidential Information
    1. Atty Client Priv.
      1. Rule of evid. 2 protects only communication not the fact communicated
      2. Policy 2 give proper legal advice 2 client by protecting confidential communication btwn atty & client / agent in interim
      3. Only applies 2 govt'al tribunal where they have pwr 2 subpoena 2 force U 2 B W (witness)
    2. Ethical Duty of Atty
      1. Sep. from evid. rule that atty has duty 2 preserve confidential info
        1. Covers all protected by atty client priv.
        2. Cov's everything else that U learn in the course of rep'ing client (but not if get it when not rep. client)
      2. Not limited 2 govt'al tribunals
      3. Can't use the confidence of client 2 atty's adv. & client's disadv.
        1. ABA code says can't use confidential info just 2 adv. yourself
        2. ABA Model Rules say if use confidential info just 4 U'r adv., it doesn't cover
    3. Exception 2 Atty Client Priv. & Ethical Duty
      1. Not apply priv. if client tries 2 get atty's help 2 commit future fraud / crime
      2. If priv. not protect, then must ans. 2 ct. & ethical duty not apply
    4. Crime
      1. ABA Model Rule (maj.), atty can only warn future crime if client intend 2 cause imm. death / subst'l bodily injury
      2. ABA Code says atty can reveal any future crime whether fin. / pers. injury
      3. If past crimes, atty shouldn't reveal it & keep client's confidence
      4. If cont'ing crime, then atty client priv. not apply
    5. Fruit (evid.) of Crime / Instrumentality
      1. Can keep 2 defend D but duty 2 turn over 2 prosec'or
      2. Prosec'or can't reveal 2 jury D's atty handed over the evid. but can say D was in poss'n of the evid.
    6. Noisy W/Drawl
      1. If client reveals that did crime against bank & want atty 2 cont. rep. him, then atty can w/draw
        1. Give notice of w/draw 2 bank disavowing any work from before
        2. Although can't tell past crime, this noisy w/drawl sort of hints
  8. Candor in Litig. (Chp 8)
    1. Atty's Duties: Trilemma Prob.
      1. Seek client's trust
      2. Preserve client's confidentiality
      3. Act w/candor & free from false evid. as officer of ct
    2. Citing
      1. Can't cite case 2 judge which atty knows is improper / overruled
      2. Can't cite repealed stt's
    3. Duty 2 Let Opposing Side Know of Precedential Cases
      1. If controlling auth. that's dir'ly on pt. against U, duty 2 tell the other side
      2. Even if not dir'ly on pt, might want 2 bring up so
        1. Trial ct will B well versed & won't B reversed in appeal
        2. Ct will probably come across the case anyway
    4. Settlement Conferences
      1. Since negotiating, can fudge truths but can't lie about dir. fact
    5. Client Testifying 2 Lie
      1. Try 2 talk him out of testifying
        1. If can't talk out of it, only ask quest's that he'll tell truth
        2. Rule against encouraging perjury
        3. ABA Model Rule 3.3, if perjures on stand, atty should tell the ct
      2. Try 2 w/draw from case
        1. Can tell the judge what's going on
        2. Atty w/drawing is blameless & so is new atty but seems pt'less b/c perjury occurs anyway
      3. Resolve all doubts in favor of client
      4. If find out about lie after client told on stand, then tell judge & ask 4 mistrial
      5. If find out about lie after case is closed, then can do nothing & atty doesn't have duty 2 reveal fraud b/c duty ceases @ end of proceeding
  9. Fairness in Litig. (Chp 9)
    1. Communication w/Jury
      1. Atty can't communicate w/jury panel 2 find out their attitudes (ABA Code)
      2. Can find out about jury panel from bk, priv. publ, etc. but not from jury themselves
      3. Can't talk 2 jury during trial 4 any rsn
    2. Jury Misconduct
      1. Probably talk 2 opposing atty 1st then tell judge
    3. Communication w/Jury After Trial
      1. Can talk 2 jury but can't harass, embarass, / impact future jury serv.
    4. Paying 4 W's Expenses
      1. Can pay 4 travel, hotel, meal, incidental expenses, & lost wages during trial
      2. Can't pay extra as compensation 4 lay W but can pay extra 4 expert W's
    5. Pretrial
      1. Interviews of W's o.k.
      2. If opposing side tries 2 make discov hard, should probably talk 2 opposing atty 1st then tell judge that they R harassing
    6. Suppl. Memos
      1. Can file suppl. memos if judge not ruled on pt but is dec'ing on it
    7. Press & News
      1. ABA Model Rule (DR 7-107)B) In civil & crim. cases, attys & assistants can't say anything that would subst'ly prejud. the case except
        1. Can counteract adverse publicity from another source
        2. Can talk about nuts & bolts info: charge, pub. records, warn, need 4 pub. help, etc.
  10. Trial Lawyer as Truth Seeker (Chp 10)
    1. Prosec'or & W
      1. No rule that can't tell W of other evid. that can't B admitted
      2. But unethical 2 tell W of other evid.
      3. If W lies on cross exam, then redir. / inform ct of fraud b/c has duty
    2. Duty 2 Dismiss in Crim. Cases
      1. If no longer have p/c dismiss but not have 2 dismiss every X W becomes uncert.
      2. Can't urge W 2 cover up uncert. though
    3. Rule of Courtesy: Do Not Eavesdrop
    4. D's Atty
      1. Can't testify & counsel @ same X
      2. Can't address prosec'or by D atty
    5. Closing Stmt
      1. Can't state own opinion / put pers'al credibility on line
      2. Abraham Lincoln Rule
  11. Conflict of Int.
    1. Three Kinds
      1. Atty pers'ly in client's int.
      2. Int. of 2 clients
      3. 3rd party's interference
  12. Conflict of Int.: Interference by 3rd Party (Chp 11)
    1. Conflict of Int. Rule
      1. Gen'ly some conflict of int. can B solved by client's consent but if rsbly atty must advise not 2 consent, then consent can't solve conflict of int. prob.
    2. Duty 2 Client
      1. If somebody else pays 4 the client, still duty 2 client not 2 the person who's paying
      2. In ins. co. sit, if opposing offers 2 settle, should tell both insured & ins. co. of possible conflict of int.
      3. If not advise both, then may have malpract. case later on dep'ing on outcome of case
    3. Group Legal Serv. Prog.
      1. If client comes in w/case against the org. which legal serv. prog. is affiliated w/, then may advise client 2 go elsewhere
      2. Simplest way 2 solve such cases (ex. of college & legal serv. prog. run by college), limit legal serv. plan so won't cover conflicting cases
    4. Corp.
      1. Atty has duty 2 corp. as client, not 2 indiv. officers
      2. If officer insists on doing something that can make corp. civilly & crim'ly liab. after explaining ramifications, then ABA Model 1.13 Rule says 2 advise officer 2 get indep. legal opinion
      3. If officer refuses 2 discl. something that could make corp. liab., then atty has duty 2 discl. 2 the bd. (board)
      4. Atty should
        1. Orally explain 2 officer
        2. Write a memo so can cover him/herself
        3. If bd not do anything about it, w/draw from rep. & maybe even quit if it's crim.
  13. Conflict of Int.: Atty v. Client (Chp 12)
    1. Atty's Conflict w/Client
      1. Econ'ly / busi. wise
      2. Pers'al
    2. Econ. Conflict
      1. Can't advise client & then buy out person's prop. in jud. sale
      2. ABA Rule that should avoid creating appearance of impropriety so shouldn't buy out dir'ly from client either
      3. Can enter into busi. trxn w/client if
        1. Advise client 2 get outside counsel before entering into trxn
        2. Discl. terms of trxn 2 client
        3. Discl in writing
        4. Discl in clear terms so that client can understand
        5. Terms must B rsbl & fair 2 client
        6. Client nees 2 consent 2 trxn in writing
      4. ABA Model Rule allows sec. int. / poss'ry int. (sec'ed loan 2 client) averse 2 client if follow above reqt's
      5. Atty can't have pers'al int. in subj. of litig. so can't acquire pers'al int. (like buying land) even if harmonious 2 client's int. in litig. except
        1. If 4 conting. fee o.k.
        2. Can acquire lien on jgmt 2 secure payment of fee
    3. Pers'al Conflict
      1. ABA Code & Model Rule not allow publishing K instead of fee in crim. cases
      2. If indigent wanted priv. atty instead of PD 2 rep. him, then publishing K o.k. after client understands & waives (other jxn other than CA prohibited)
      3. Atty can't B trial atty & W but some exception in ABA Code
        1. Can B trial atty & testify if it's about uncontested formality
        2. Can B trial atty & testify if limited 2 nat. & value of serv's rendered in case
        3. If opponent calls U 2 stand, then can stay in as trial atty unless testimony prejud'al 2 client
      4. ABA Model Rule where can testify & another law partner / counsel can B trial atty
      5. Atty can't sugg. herself as exec'or of will if get benefit so gen'ly have will drafted by somebody else but if nobody else around & not overreach, then o.k.
      6. Atty shouldn't B involved romantically w/client
      7. If have close pers'al rel. w/atty on other side, both must discl. 2 respective clients & get consent before proceeding but there's prob. of confidential info, etc.
  14. Conflict of Int.: Conflicts Btwn 2 Clients
    1. Three Types
      1. Two present clients
      2. One present, 1 past
      3. One present, 1 future
    2. Imputed Disqualif.
      1. If 1 atty in office has conflict, nobody else can take the case which incl's office full of prosec'ors, govt atty's, etc.
    3. Consent & Conflict of Int.
      1. Rsbl atty stand. 4 consent 2 conflict of int. so if rsbly atty must advise don't consent, then consent can't solve conflict prob.
    4. Present & Past Client
      1. Can't rep. present client whose case conflicts w/past client unless past client consents but if there's confidential info, then consent not solve conflict
      2. Even if no confidential info, if subst'ly rel'ed need consent
    5. Present & Present
      1. If U rep. more than 1 clients in same case & there may B conflict in future, then must discl. & get consent from all
      2. If there is conflict later on, then may have 2 w/draw from all cases b/c of confidential info
      3. If there's no confidential info, still need consent from the client U R w/drawing from 2 stay on as atty b/c of subst'ly rel'ed rule
      4. In crim. cases, not rep. both co-D's b/c in trial, may blame each other
    6. Present & Future
      1. Don't oppose present client in civil when rep. him in crim. even if case is totally unrel'ed
      2. If in civil case, new client wants U 2 take contrary position 2 present client, then consent probably not solve the conflict
    7. Judge
      1. ABA Code says if ruled on merits while act as judge then can't work on same matter in priv. pract. but if ruled only on like discov. stuff so not merits, can work on it in priv. pract.
      2. ABA Model Rule says if subst'ly & pers'ly involved as judge, then can't work on the matter if go into priv. pract. which is harsher b/c beyond just merits
      3. Matter is specif. dispute btwn partic. people over partic. set of facts so drafting leg. doesn't count as matter
    8. Govt EE & Imputed Disqualif.
      1. Not apply if former govt atty screened off from case & not allowed 2 see any confidential info,
      2. Govt atty not share any fee, &
      3. Inform former govt agency
    9. Former Atty & Imputed Disqualif. (Model Rule 1.10)
      1. Firm can't rep. present client if matter is subst'ly rel'ed 2 what former atty was doing AND
      2. Any remaining atty received that is material info averse 2 present client
    10. No Screening Proced. 4 Atty's Moving Btwn Priv. Firms
      1. If atty in new firm gets confidential info on present client which conflicts w/past client from old firm, then entire new firm is disqual'ed
    11. Atty as Interm. Btwn Clients If
      1. By ABA Model Rule, tells clients of ramifictions & gets consent,
      2. Rsbly believes that matter can B resolved w/clients' best int. & little risk of material prejud. if not resolved AND
      3. Rsbly believes that common rep. can B undertaken impartially & w/o improper effect 4 other resp's atty has 2 any clients
    12. Atty Using Eval's
      1. ABA Model Rule says atty can eval. matter affecting client 4 somebody else's use if
        1. Atty rsbly believes it's compatible w/atty's rel. w/client AND
        2. Client consents
  15. Jud'al Conduct (Chp 14)
    1. Campaign $
      1. If appt'ed judge, can't campaign b/c not run 4 judge
      2. If elected, then can donate $
    2. Judge's Friend as Counsel
      1. Waive disqualif. by discl'ing ground 4 disqualif. and
      2. Talk 2 indiv's
      3. If willing 2 waive, then waive in writing outside of judge's presence
    3. Impartiality
      1. Shouldn't do things that may affect impartiality of judges
      2. If rsbl ground 2 doubt impartiality, should disqual. yourself
    4. Gifts
      1. Can take rsbl gifts 4 birthday / anniversary, etc. so that no sense of impropriety
      2. Can accept gift from anybody who won't come before judge as atty & litig. but if more than $150, then must make pub. notice
    5. Testimony as Charact. W
      1. Can't vol'ly testify but could B subpoenaed which isn't encouraged
    6. Can't Use Prestige 2 Help Out Friend
      1. But may B able 2 just say cit. (bank loan ex.)
    7. Admitting Relev. Evid.
      1. If judge comes across relev. info after case closed, then reopen 2 admit
    8. Experts
      1. If judge wants 2 use expers, need 2 notify parties
      2. Tell parties what expert said, AND
      3. Give parties chance 2 respond
    9. Priv. Pract.
      1. Full X judge can't pract. law but part X judge can
      2. Full X judge can't arb. / mediate
    10. Commission
      1. Can't accept commission 4 outside of legal stuff
    11. Org.
      1. Can B dir'or of non org. if devoted 2 ed., relig., civic, charty, etc. but can't if involve litig.
    12. Fundraising
      1. Can partic. & help manage but can't dir'ly get $ except from other judges if not in appellate / pers'al supervision
    13. Speech
      1. Judge can speak on legal & nonlegal issue but an't make pub. stmt of pending / impending litig's going on now / about 2 go on
      2. Can accept small honorarium that's not higher than 2 person who wasn't a judge but must make pub. notice
    14. Fid.
      1. Judge shouldn't B fid. but o.k. 2 B exec'or of estate 4 member of family
      2. But if litig. & come before ct, then not accept position even if family
    15. Grounds 4 Disqualif: if affect impartiality
      1. Past Clients
        1. Should disqual. if as priv. atty had rep'ed past client & comes before ct. 4 litig. as judge
      2. Disqualifying in Middle of Trial
        1. Need strong evid. 2 disqualify judge in middle of case
      3. If fin. int, then disqualify
      4. If int. in the way dec. comes out, disqualify

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Ms. Haeji Hong 1