PR SHORT OUTLINE/CHECKLIST

CHECKLIST
Duties to Clients – Clients Love Fierce Counsel
Confidentiality
I. DUTIES TO THE CLIENT
a. CONFIDENTIALITY Loyalty

b. LOYALTY Financial Responsibility Client(s). Do each separately!

c. FINANCIAL INTEGRITY
Competence
d. COMPETENCE
…and other reasonable things
II. DUTIES TO THIRD PARTIES
a. DUTY OF FAIRNESS TO OPPOSING PARTIES Duties to entities other than clients (mix and match) – Courts Feel Differently
b. DUTY OF PROSECUTORS Candor/Honesty Third parties
Opposing Parties
Fairness Prosecutors
III. DUTIES TO THE COURT Dignity/Decorum Court
a. DUTY OF CANDOR Witnesses
b. DUTY OF HONESTY …and other reasonable things Jurors
c. DUTY OF WITNESSES AND JURORS Legal Profession
Public

IV. DUTY TO THE PROFESSION

a. AVOID UNAUTHORIZED PRACTICE OF LAW
b. AVOID FALSE OR MISLEADING ADVERTISEMENTS
c. AVOID IMPROPER SOLICITATION
d. AVOID PREJUDICIAL EXTRAJUDICIAL STATEMENTS

*Note, most sample answers seem to use the act the lawyer took as a heading and then put the potential duties violated
below it…ex: "Convincing Client to Take Settlement," "Advancing Litigation Fees," "Agreement with Physician"

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I. DUTIES TO THE CLIENT

a. DUTY OF CONFIDENTIALITY
i. An attorney must not reveal information relating to the representation of a client – must
maintain client confidences at all time. This duty applies regardless of whether the client
requested that the information be kept “confidential.”
1. Duty of confidentiality attaches before a lawyer-client relationship is formed, or even
if none is formed. If no employment is formed, the burden is on the party to prove
confidences were actually imparted.
2. Once attached, the duty of confidentiality continues indefinitely, even after formal
representation ends, and even after death.

ii. Exceptions:
1. The following exceptions permit the attorney to disclose confidential information given
by a client:
a. (1) Consent
i. If client consents after consultation, a lawyer can reveal otherwise
confidential information. It can be implied if necessary to render legal
services.
b. (2) Defending Yourself
i. If client sues attorney for malpractice or brings a disciplinary actions
against the attorney or refuses to pay, attorney can reveal information
necessary to establish his claim or defense (cannot exceed amount
necessary though).
c. (3) Compelled by Court Order, Law, or Ethical Duties
i. Your duty to uphold the law permits an exception to prevent certain
crimes
1. Death or substantial bodily harm – disclosure allowed if the
attorney reasonably believes disclosure is necessary to prevent a
crime likely to result in reasonably certain death or substantial
bodily harm.
a. In CA, you must first, if reasonable under the
circumstances, (i) make a good faith effort to persuade
the client not to commit the act, and (ii) inform the
client of your decision to reveal his confidences.
2. Fraud or Financial Crimes – disclosure allowed if a client used
or is using an attorney’s services to commit the crime, and the
disclosure would prevent or mitigate substantial financial loss
In CA there are NO FINANCIAL EXCEPTIONS

iii. Distinguish Attorney/Client Privilege

Attorney-Client privilege - overlapping, but narrower, evidentiary rule that allows you to refuse
to produce or testify about confidential communications related to the representation made by
your client or her agents to you.

Confidentiality is broader. Applies regardless of the source of the information, to anything that
is not generally known, and to disclosures beyond the legal representation that could reasonably
lead to discovery of information related to the representation.

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b. DUTY OF LOYALTY
i. Introductory Material to Write on the Bar:
1. An attorney has a duty of loyalty to his client. If an interest of the attorney, another
client, or a third party materially limits or is adverse to loyal representation of his
client, there is a conflict of interest.
2. Generally, an attorney should refrain from representing clients in which he has a conflict
of interest (CA includes potential conflict), by refusing to take the case, advising client to
get separate counsel, or withdrawing, but he can accept so long as:
a. (1) atty rsbly believes he can competently/diligently represent each client (not in CA)
b. (2) fully inform each client (which may not be possible if you cannot disclose
information b/c of duty of confidentiality, AND
c. (3) obtain written client consent (CA - informed written disclosure & consent)

ii. Conflicts Between Attorney and Client

1. Use of Information
a. Use or communication of info relating to the representation of a client to her
disadvantage & without consent violates the duties of loyalty & confidentiality.
2. Business Transactions
a. “First discuss over coffee (FDOC).” You may enter into business with a client or
obtain an interest adverse to hers only if:
i. (1) the terms are Fair to the client,
ii. (2) fully Disclosed in understandable writing,
iii. (3) the client has an Opportunity to consult an outside lawyer, and
iv. (4) your client provides written Consent. In CA, just written disclosure
b. Ex: Board Service (discouraged b/c duties) or accepting stock in company as pmt
3. Publication Rights
a. ABA rule says you cannot enter a publication rights contract until after
representation has ended
b. In CA-allowed. Case law discourages Ks before the end of proceedings, but
tolerates them if judge is satisfied that client clearly understands & consents.
4. Gifts
a. You must not
i. solicit a substantial gift from a client, OR
ii. draft a legal instrument for a client who is not your close relative if it
provides a substantial gift to you or your relative.
5. Loans/Advances:
a. ABA - You may not assist your client financially, except for costs and litigation
expenses when representing an indigent, and the advance of litigation expenses
in contingent fee cases.
b. CA prohibits the promise of paying a prospective client’s debts, but allows loans
in all matters (including non-litigation matters) for any purpose after the lawyer
is hired if there is a written loan agreement.
6. Third Party Payments:
a. Must have informed client consent to have third party pay client's legal bills
i. CA - Must have informed disclosure AND consent, both in writing
b. Third party does NOT get control of case, no excuse for confidentiality breaches
7. Close Relationships with Opposing Lawyer
a. Cannot oppose a party represented by your relative w/o client consent
b. “close relations” include: immediate family, i.e., your parent, child, sibling, and
spouse. This conflict is not imputed to other firm members
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c. CA explicitly recognizes other “intimates,” ie: shackmates, and requires only

written disclosure.
8. Trial Counsel as Necessary Witness
a. You cannot serve as counsel and witness in the same trial unless
i. (i) your testimony is uncontested or regarding the nature and value of
services rendered; or
ii. (ii) if your distinctive value to the case means withdrawal would impose
substantial hardship on the client
b. If testimony might prejudice client, consent required & conflict imputed to
colleagues
c. CA allows testimony in any bench trial &, if client consents, in a jury trial as well.
9. Sexual Relationships
a. Under the ABA rules, you cannot have sexual relations with a client unless the
attorney and client had a pre-existing relationship.
b. CA allows new sexual relations with a client unless (1) it will affect the lawyer’s
ability to adequately represent the client, (2) coerced/undue influence, or (3)
demanding sexual relations for legal services.

iii. Concurrent Conflicts with Other Clients

Concurrent conflicts of interest exists where representation of client is directly adverse to
interests of another client, or significant risk that representation of a client will be materially
limited by interests of another client/former client/third party
1. Opposite Sides of the Same Matter
a. You can never represent two clients on opposite sides.
2. Opposing a Current Client in Another Matter
a. You cannot oppose a current client in another matter unless consent is given
from both parties.
3. Two Client’s with Inconsistent Positions
a. Representing two clients with inconsistent positions is generally okay because
positions don’t create a conflict between clients, but if either client would be
disadvantaged, you need consent.
4. Multiple Clients in Same Matter
a. Usually requires disclosure and consent. Examples of representing multiple
clients or matters in which you might act as an intermediary are representing:
i. A corporation and any of its directors, officers, employees, shareholders
ii. Both spouses in a divorce or will
1. (CA Prenup-everyone must have independent counsel)
iii. In criminal matters, dual representation may also impede the Sixth
Amendment’s guarantee of “effective assistance of counsel.”
5. New Clients in Matters Related to Former Client’s Matters
a. You cannot take on a new client with interests materially adverse to a former
client without the former’s consent. The same is true for prospective clients.

iv. Corporation as a Client

1. A lawyer must act in the best interest of the entity, even if an officer, employee, or
other associated person acts to the contrary.
a. If as in house counsel you find out the CEO is materially violating security laws,
you must bring the matter to the CEO or Chief Legal Counsel and if they do not
respond then to the highest authority in the company.

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b. If you reasonably believe it necessary to prevent fraud, perjury or substantial

injury to the organization or investors, or to rectify financial injury from a
violation that involved your services, you may disclose confidential information
to the SEC without client consent.
c. CA still prohibits outside reporting, federal preemption means CA lawyer may
comply with federal law.

v. Imputed Disqualification
1. If you leave your firm, your former firm may not represent a client who’s interests are
adverse to former clients if (i) the matters are substantially related or the same, and (ii)
any remaining lawyer has confidential, material information to the preceding
representation.
2. At your new firm, your conflicts will not extend to your colleagues if you: (1) are timely
and effectively screened, (2) receive no direct part of the fee, and (3) your former client
receives notice and (4) periodic certifications of compliance with these conditions.

vi. Limiting Liability

1. Cannot limit your client’s right to report you for ethical or other professional violations.
2. Similarly, you cannot limit your malpractice liability when you enter into a relationship
with your client, unless the client is independently represented in making the
agreement. In CA, you can never limit liability for malpractice

vii. Withdrawal
1. Mandatory Withdrawal
a. Under the ABA, you must withdraw if
i. (1) representation will violate the RPC or another law,
ii. (2) lawyer’s physical or mental condition materially impairs the lawyer’s
ability to represent the client, and
iii. (3) the lawyer is fired.
b. In CA, must withdraw if you
i. (1) know or reasonably should know that client is acting without
probable cause and to harass or maliciously injure another, or
ii. (2) if representation will violate the rules of RPC.
2. Permissive Withdrawal
a. You may withdraw for any of the following:
i. (1) when withdrawal can be done without material adverse effect on the
client’s interest
ii. (2) client persists in using lawyer’s services to commit crime/fraud
iii. (3) the matter is repugnant to the lawyer or fundamental disagreement
iv. (4) clients fails substantially to fulfill an obligation to the lawyer
regarding the lawyer’s services & has reasonable notice that lawyer will
withdraw unless obligations is fulfilled
v. (5) results in unreasonable financial burden on lawyer

viii. Special Conflicts of Former Government Employees

1. ABA bars a gvmt lawyer who worked “personally and substantially” on a “matter” from
working on the same “matter” later in private practice.
a. "Matter" defined as a specific dispute btwn specific people over specific issues
b. Conflict may be allowed with informed consent by the government agency.
2. CA bars prosecutor from later working on Δse side of case (screen other gvt coworkers?)
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3. Imputed disqualification – other members of your firm may work on matters similar to
government work if:
a. (1) You are screened off; and
b. (2) You do not share any part of the fee in the matter (pre-arranged salaries or
partnership shares are OK); and
c. (3) Your former government employer is informed
4. Third party neutrals (judges, clerks, arbitrators) require consent of all parties

c. DUTY OF FINANCIAL INTEGRITY

i. Attorney Fees
1. In non-contingent fee cases, agreements must include: how the fee is calculated; what
services are covered, and the lawyer and client’s duties.
a. CA requires more than the ABA: agreements must be in writing, unless
i. (i) the fee is under $1000,
ii. (ii) with a corporate client,
iii. (iii) for routine services for a regular client, or
iv. (iv) it’s an emergency or impractical.
2. In contingent fee cases:
a. Written fee agreements must be signed by the client and contain
i. (1) Your percent
ii. (2) What expenses are to be deducted from recovery
iii. (3) Whether your percentage is taken before or after expenses
iv. CA ALSO requires the following:
1. (4) How work not covered by the contingency fee will be paid, &
2. (5) The lawyers’ fees are negotiable
b. Types of Actions Allowing Contingent Fees
i. Under ABA rules, contingent fees may not be used in domestic relations
or criminal cases. CA is silent on criminal cases, and OK’s contingent fee
divorces “provided the fee arrangement won’t encourage the breakup of
an otherwise savable marriage.”
c. Termination before contingency/judgment
i. If termination occurs prior to judgment & client wins, attorney can
recover in proportion to amount of work done
3. Amount of Fees
a. ABA Rule: fees must be reasonable, taking into account the labor, novelty,
difficulty, skill and timing required, result obtained, the experience of and other
demands on the attorney, fee arrangement, etc.
i. CA rule: fees must not be unconscionably high.
4. Fee Splitting
a. With other lawyers in your firm = OKAY.
b. With lawyers outside of your firm = OKAY only if total fee is ethical, and there is
written disclosure and consent. Also, ABA requires fee split to be proportional
in relation to work done.
c. With non-lawyers = NOT okay.
i. Exceptions: (1) death benefits paid to a deceased lawyer’s firm or heirs
for his work, (2) fees passed on salaries and pensions to non-lawyer
employees, and (3) sharing of court-awarded legal fees with a non profit
organization that employed or recommended the lawyer.

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ii. A lawyer may pay the usual charges of a qualified lawyer referral
service.

ii. Disclosure of Professional Liability Insurance

1. Although not a disciplinary offense, the ABA allows administrative suspensions for failure
to report whether you carry insurance on your annual registration statement. CA
requires, at the time of engagement, written disclosure of the absence of insurance
directly to any client foreseen to need more than four hours of work.

iii. Client Trust Accounts

1. Duty to Safeguard: You have a duty to safeguard your client’s property by labeling and
storing it in a safe place such as an office safe or bank safe deposit box. Money for the
client must be placed in a separate client trust account. These include moneys received
on his behalf, advances for costs, expenses and fees.
a. If you have a fee dispute or if a third party has a lawful claim over your client’s
funds or property in your custody, you must withhold the disputed portion in
the client trust account until resolution of the claim
2. Duty to Not Commingle: No borrowing or commingling of funds with your personal
money allowed.
a. Smaller funds held for a short period of time for several clients at once can be
deposited into a “pooled client trust account” known as an IOLTA account. The
remainder of the interest goes to the state bar.
3. Duty to Keep Records: You have a duty to keep good records for your client, render
accountings, notify him of money’s received on his behalf, pay money owed. CA requires
you keep records for 5 years.

d. DUTY OF COMPETENCE
i. You have a duty to render competent service to your client. The duty of competence requires
the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the
representation. The duty of competence includes the following:
1. Duty of Diligence
a. Duty to diligently, promptly, and zealously pursue your case to completion.
2. Duty to Communicate
a. You have a duty to keep your client informed about the case, including
settlement offers and answering messages.
3. Accepting Representation
a. The general rule is that you are free to accept or to reject any case.
b. However, the ABA rules says you should accept, as part of your duty to the
public and profession: (a) the case of the defenseless or oppressed “if your only
reason to refuse is selfish,” and (b) a fair share of work without charge. ABA
rules urge 50 hours of pro bono work a year for truly indigent clients.
c. Must reject a case if violate law or ethical duty.
4. Scope of Representation
a. The client makes decisions about her substantive rights; the lawyer makes
decisions on legal strategy. If you disagree, you can limit the scope of
representation, with client consent.
5. Duty to Train/Supervise Subordinate Lawyers and Non-lawyer Employees
a. Atty must train and supervise subordinate employees
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6. Duties On Withdrawing From Representation

a. Mandatory withdrawal – you must withdrawal from a pending case if you are
fired, or if continuing would violate a law or ethical rule, ie: continuing would
require assisting in a crime.
i. Knowingly pursuing a frivolous claim violates the duties of candor and
fairness.
b. Permissive withdrawal – you may withdraw from a case if you convince the
court there is good cause, and your withdrawal will not cause undue delay or
disruption.
i. Recognized causes include a client’s acting illegally, or his insistence on
actions you find “repugnant” or imprudent. The ABA also recognizes
when the representation will result in an unreasonable financial burden
or when, after warning, the client fails substantially to fulfill an
obligation to you.
c. Procedures for withdrawal. In order to quit, you must:
i. Provide timely notice to the client, and
ii. You must promptly return:
1. Any unspent fee and expensive advances, and
2. All property and material papers. Including everything needed
to pursue the case, even work product, even if the client has not
paid. CA forbids withholding client’s materials for your money

II. DUTIES TO THIRD PARTIES

a. DUTY of FAIRNESS TO OPPOSING PARTIES
a. Atty has a general duty to behave honestly and fairly in all dealings, both in and out of legal
practice. Even if not explicit rule, atty must act to promote public confidence in integrity and
efficiency of the legal system and profession
b. Duty to Produce Evidence
i. Not Suppress Evidence
1. Must not suppress any evidence that you or your client has a legal obligation to
reveal or produce, regardless of your duty of loyalty.
2. Lawyer prohibited from obstructing access to evidence; altering, destroying, or
concealing material having potential evidentiary value; or counseling another
person to do so
3. Lawyer cannot request a person other than a client to refrain from voluntarily
giving relevant information to another party
a. Exception - Can request if person is a relative, employee, or argent of a
client and lawyer rsbly believes the person's interest will not be
adversely affected by refraining from giving such information
ii. Interference with Evidence
1. Must turn over evidence, but cannot violate your duty of confidence to your
client and give up the source of the evidence
iii. Volunteering information:
1. Reveal relevant information in ex-parte proceedings
a. Overrides normal presumption to not reveal facts harmful to client's
case
b. “Ex-parte” proceedings are unusual communications with the judge
without your adversary present.
c. Required by ethical duties of candor to the court and fairness to your
(absent) adversary
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iv. Wrongfully Sent Document

1. If you know it was inadvertently sent, you must stop reading and notify opposing
counsel.
c. CA prohibits using threats to bring disciplinary, administrative, or criminal proceedings as
leverage in a civil dispute

b. DUTY OF PROSECUTORS
a. Prosecutors have a special duty to timely disclose evidence favorable to defense.
i. Your ethical duty exceeds the Constitutional Brady obligation, requiring disclosure
without regard to impact on outcome or admissibility of information.
b. Probable Cause
i. Prosecutors must have probable cause and must seek justice, not simply win cases.

III. DUTIES TO THE COURT

a. DUTY OF CANDOR
a. A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit, or
misrepresentation. Even within our adversarial system these duties can trump duties of loyalty
and confidentiality.

b. DUTY OF HONESTY
a. You must refuse to make false statements of material fact, or offer evidence you know is false
to a tribunal, or fail to correct a false statement of material fact or law that you previously
made or presented to the tribunal.

b. Duty to Present Facts/Evidence Truthfully

i. Client perjury – must not knowingly facilitate client perjury
1. Civil case: must refuse to call the client as a witness
2. Criminal case: 5th amendment right to testify on their own behalf and a 6 th
amendment right to the effective assistance of counsel.
a. If they take the stand and you know they are going to perjure, must take
reasonable remedial measures:
i. (1) Counsel client to testify truthfully or not take the stand at all
ii. (2) may try to withdraw from the case
iii. (3) ABA you must tell the judge.
1. CA – allows defendant to testify in narrative fashion but
do not further the deception
ii. If you do not know, but only have a reasonable belief, that testimony is false, these rules
are permissive
c. Duty to State Law Truthfully
i. Knowingly making a false statement of law to the court is subject to discipline. You have
an obligation to be candid about the law and to cite to adverse authority if it’s from a
controlling jurisdiction and directly on point. Presenting frivolous claims or defenses is
subject to discipline
d. Duty to Uphold the Law
i. Assisting in a crime – if continued representation would require you to commit or assist
in committing a crime, you must withdraw.

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ii. Preventing your client from committing a crime – if your client is going to commit a
crime reasonably likely to result in reasonably certain death or substantial bodily
harm, your disclosure of confidences is permissive

c. DUTY RE WITNESSES AND JURORS

a. Witness: You must not counsel or assist a witness to testify falsely or to become “unavailable.”
b. Don’t try to influence anybody improperly. Can’t talk to any prospective or impaneled juror. You
may interview jurors but must tell them they have a right to decline.
c. Preserve decorum in the courtroom – no abusive conduct.

IV. DUTY TO THE PROFESSION

a. AVOID UNAUTHORIZED PRACTICE OF LAW
a. An attorney has a duty to avoid assisting someone with the unauthorized practice of law.
i. Practice of law is defined as anything that would call for the judgment, reasoning, or skill
of an attorney

b. AVOID FALSE OR MISLEADING ADVERTISEMENTS

a. Advertising must not be false or misleading
i. Advertising cannot mislead or omit material information
ii. Advertising cannot raise unjustified expectations or make unverifiable comparisons.
CA presumes improper any ad that contains guarantees, warranties, or predictions of a
result. No testimonials or endorsements may be used unless there is an express
disclaimer that they are not a guarantee, warranty or prediction.
b. Claims of Legal Specialties.
i. cannot advertise claims of specialization unless you are certified by the CA board of legal
specialization. ABA rules allow certification by approved organizations, which must be
identified in communications.
c. Cannot Advertise if Someone Indicated Wants to Be Left Alone.
i. Advertising must not harass or solicit someone who has indicated that she wants to be
left alone. Targeted direct mail is OK, but must meet exact guidelines for labeling as
“advertising material.”
d. Ads must be labeled as advertising and comply with the following:
i. Must identify at least one lawyer responsible for its contents
ii. Must keep records of content and placement of any ad for 2 years

c. AVOID IMPROPER SOLICITATION

a. Solicitation refers to individualized contact with layperson.
b. The rule, with built-in exceptions: do not seek professional employment for pecuniary gain by
initiating a live or telephone contact with a prospective client with whom you have no prior
professional, personal or family relationship.
i. CA presumes that communications made at the scene of an accident or en route to
medical facility are improper, as are communications to potential clients that you should
know are not in the physical or mental state to exercise reasonable judgment.
c. The duty extends to agents – you can’t employ an agent to do something that you yourself are
not permitted to do.

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d. AVOID PREJUDICIAL EXTRAJUDICIAL STATEMENTS (press conferences, etc)

a. A lawyer involved in a matter is prohibited from making extrajudicial statements that the lawyer
knows or reasonably should know will be disseminated by means of public communication and
will have a substantial likelihood of materially prejudicing the proceedings
i. Permitted References - Lawyer is permitted to state the offense/defense involved in the
case and the identity of persons involved
ii. Prejudicial References - Personal opinions are not permitted

e. REPORTING MISCONDUCT
a. Duty to report any lawyer's or judge's violation of the rules in any legal or non-legal context if it
raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer
i. CA does not require external reporting, but can discipline you if you knew about
colleague's violation and did nothing to prevent it
b. CA requires self reporting if charged w/ a felony, convicted of serious crimes, or liable for fraud

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