california bar exam outline - professional responsibility
California Bar Exam Outline - Professional Responsibility
This is an outline which I created as part of my preparations for the July 2000 California Bar Exam. I started with the outline of subjects covered on the MBE exam provided by the National Conference of Bar Examiners. To that outline I added the additional topics tested on the California Bar Exam. I then filled in the substantive information for those categories from the following sources:
- PMBR lecture tapes (24 tapes covering torts, K, property, con law, crim law, and evidence).
- BarBri "Early Bird" lectures covering K, evidence, crim law, crim pro, con law, civ pro, bus org, community property, and property.
- PMBR Multistate Workbook Volume 1 Outlines (torts, K, property, crim law, crim pro, evidence, con law)
- PMBR Multistate Workbook Volume 1 MBE answers
- PMBR Multistate Flashcards
- Strategies and Tactics for the MBE, by Emanuel
- PMBR 6-day lecture and �Early-Bird� Workbook (MBE answers and Multistate Issue Graphs)
- Duty to client: CCCCC STUD (5 card stud)
- Communicate: Keep client in formed, respond promptly to reasonable request, and explain all matters to client so that client can make informed decision. Promptly inform client of any written settlement offer. Competence: Use necessary legal skill, knowledge, thoroughness and preparation; not neglect a matter, be unprepared, or take on a matter she is not competent to handle; not act in a fraudulent or dishonest manner; exercise the degree of ordinary care, skill and prudence possessed by general practitioners; comply with mandatory CLE requirements. Confidences � don't reveal.
- Privilege protects disclosure unless communication involves commission of future crime or fraud, dispute re: attorney�s conduct, civil litigation between former clients, or will disputes regarding competency or intent.
- Ethical duty protects disclosure and use of information related to representation, unless client consents, or communication involves dispute re: attorney�s conduct, future but not past crimes which cause imminent death or substantial bodily harm.
- Can�t use information to your own advantage or TP�s advantage, even if no harm to client.
- May reveal communication involving past fraud, unless information protected as privileged communication.
Conflicts of interest � avoid them.
- Prohibited transactions
- Adverse interests and business transactions with client, but client may waive if transaction is fair, full disclosure, written consent and opportunity to consult with independent attorney.
- Use of confidential info to client�s disadvantage.
- Testamentary gifts from client unless lawyer related to client.
- Literary or media rights unless matter is concluded.
- Financial assistance to client, except court costs and litigation expenses.
- No aggregate settlements when representing multiple parties, without disclosure to all parties.
- Agreement to limit malpractice liability, unless client informed in writing that she may seek advice of independent lawyer and is given opportunity to seek such advice.
- Propriety interest in subject o litigation.
- Receive compensation from TP for representing client unless client consents, TP does not interfere with lawyer�s representation, and arrangement does not compromise client�s confidential information.
- Atty cannot represent client in matter where another party�s lawyer is a close relative of the attorney, lives with attorney, client of attorney, or has intimate personal relationship with attorney, unless both clients consent in writing after full disclosure.
- Former clients
- Must preserve confidential communications after representation concluded.
- Cannot oppose former client where confidential information previously obtained form client might be relevant or work to former client�s disadvantage.
- Cannot oppose former client in matter substantially related to former representation without client�s consent.
- Imputed qualifications: If one lawyer in a firm has a conflict, it�s imputed to all other lawyers in the firm unless waived by client. Exception: Lawyer in no way participates in the case, receives no fee from case, and in case of successive gvmt/private employment or former judge or arbitrator, notice is given to affected gvmt agency or appropriate tribunal.
- Successive government and private employment: Former gvmt employees cannot use confidential information and cannot represent private client sin a matter that lawyer participated in personally and substantially while in gvmt service.
- Former judge or arbitrator: Lawyer cannot represent clients in a matter where the lawyer participated personally and substantially as a judge or arbitrator, unless parties consent after disclosure.
Candid advice: Lawyer must exercise independent judgment and render candid advice. Client must decide any decisions which affect client�s substantial rights and whether to testify or plead guilty in a criminal case. Lawyer decides questions of strategy, procedure or trial tactics. Safeguard money and property: No commingling of client�s money or property with lawyer�s own personal or business funds; must deposit client�s money in separate trust fund account. Lawyer must keep and provide accurate records, accounting of all money and property held for client; notify client when TP gives money or property to lawyer for client; and promptly hand over money or property to which client is entitled. Terminate properly
- Client may fire lawyer, or lawyer must withdraw, if: Ethical violations involved in representing client; attorney is incompetent; client bringing action without probable cause and for the purpose of harassing or maliciously injuring a person.
- Attorney may withdraw if no harm to client and: Client involved in criminal or fraudulent conduct; client using attorney to commit crime or fraud; client breaks promise to lawyer (no payment of fees); client is uncooperative; representation of client imposes unreasonable financial burden on attorney; client�s objective is repugnant and imprudent; where attorney learns she is a witness in the case, unless her testimony goes to an uncontested matter or relates to legal services rendered in the case, where attorney called as witness for another party and no prejudice to client, or where withdrawal would cause undue hardship to client.
- Withdrawal requires reasonable notice, time to obtain another lawyer, and promptly refund all papers and property of client, along with unearned fees.
Unreasonable fees (no)
- Factors of unconscionability include amount of fee versus value of services performed; relative sophistication of attorney and client; difficulty of legal issues and skill necessary to perform services; likelihood that retaining attorney will preclude other employment for attorney� amount involved and results obtained; time limits imposed by client or circumstances; nature and length of relationship with client; experience, reputation and ability of attorney; whether fee is fixed or contingent; time/labor required; informed consent of client ot fee agreement.
- Fees should be arranged in K and in writing.
- Fixed fees can be collected in advance, but unearned portions must be returned.
- Contingency fee must be in writing, and is prohibited in criminal and domestic relations cases.
- Referral fees prohibited, but CA allows with client consent, if not unconscionable, and fee not increased due to referral.
- Fee splitting between lawyers in different firms: Permitted if client consents after full disclosure, costs split in proportion to services performed (or if not in proportion, with client�s written consent and lawyers accepting joint responsibility) [MR don�t allow disproportionate split].
Diligence (reasonable): Affirmative duty to act with reasonable diligence, promptness, dedication and zeal, and must complete the matter.Duty as advocate
- Frivolous: Avoid frivolous claims and contentions � ones that cannot be supported by good faith argument under existing law or for changing the existing law; expedite litigation without causing harm to client.
- Candid with court about applicable law, not mislead court, must disclose controlling authority directly adverse to client�s position, but no duty to volunteer harmful facts of client�s case.
- If criminal D commits perjury, lawyer must urge D to rectify fraud and testify truthfully, and only then must reveal fraud to court unless statements were privileged communications. MR & CA says lawyer should withdraw if client refuses to rectify fraud, and if not permitted to withdraw, then reveal to court during in camera proceeding (outside presence of prosecutor).
- Fairness to opposing party and counsel. Lawyer cannot communicate with adverse party represented by counsel; threaten to present criminal, administrative or disciplinary charges to obtain advantage in civil case; suppress or tamper with or falsify evidence; bribe witnesses (except expert witness fees and loss of wages); knowingly violate court order; abuse discovery procedures or engage in chicanery at trial (refer to inadmissible evidence, assert personal knowledge or opinion); assist in perjury.
- Preserve impartiality and decorum of court. Lawyer must not seek to influence judge; engage in ex-parte communications with court unless authorized by law; engage in disruptive conduct; publicize case where information will have substantial likelihood of materially prejudicing proceeding; avoid being a witness in the case (if possible harm to client or potential conflict, must disqualify from case, unless client waives); must not communicate with jurors during trial, and after trial cannot ask questions intending to harass or embarrass juror or influence future jury service.
- Prosecutors must use fair procedures and insure that guilt is decided on proper and sufficient evidence. Cannot prosecute unless charge is supported by probable cause; must protect accused�s right to counsel; must disclose evidence that may help defense or might mitigate punishment.
- States may prohibit false or misleading statements and regulate potentially misleading statements. State must show substantial interest and in proportion to interest served if purpose is other than to prevent deception.
- Personal contact with potential client prohibited if client is actually overreached or misled. State may adopt prophylactic rule to prohibit personal contacts that are likely to result in overreaching or misleading prospective clients. Lawyer may not be disciplined for offering free legal services of recognized public interest group.
- False or misleading statements = discipline.
- Solicitation: Lawyer must not seek fee-paying work by initiating a personal or live telephone contact with a prospective client with whom the lawyer has no familial or prior professional relationship.