Subject outline

Professional Responsibility (ABA and California)

11 core rule statements and a 1037-line detailed rule bank, organized the way the California Bar tests them.

• Duty of Competence

  A lawyer must provide competent representation through legal knowledge, skill, thoroughness, and preparation reasonably necessary for the matter.

  Elements / Factors

  1. 1Required knowledge and skill.
  2. 2Adequate preparation and thoroughness.
  3. 3Appropriate supervision and use of technology.
  4. 4Learning, association, or referral when competence is initially lacking.

  Exceptions / Limitations

  • •Emergency assistance may permit limited service reasonably necessary under circumstances.

  California distinction

  • California prohibits intentionally, recklessly, repeatedly, or grossly negligently failing to act competently and expressly includes mental, emotional, and physical ability reasonably necessary for the service.

• Duty of Diligence

  A lawyer must act with reasonable diligence and promptness and may not neglect or abandon a client matter.

  Elements / Factors

  1. 1Pursue the matter despite inconvenience or opposition.
  2. 2Control workload.
  3. 3Meet deadlines and protect client interests.
  4. 4Keep client informed of material developments.

  Exceptions / Limitations

  • •A lawyer need not press every possible advantage and may agree to reasonable scheduling accommodations.

  California distinction

  • California Rule 1.3 prohibits intentionally, repeatedly, recklessly, or grossly negligently failing to act with reasonable diligence.

• Confidentiality

  A lawyer must not reveal information relating to representation unless the client gives informed consent, disclosure is impliedly authorized, or an exception applies.

  Elements / Factors

  1. 1Information relates to representation, regardless of source.
  2. 2No informed consent or implied authorization.
  3. 3No applicable exception.

  Exceptions / Limitations

  • •ABA exceptions include preventing reasonably certain death or substantial bodily harm, specified crimes/frauds, securing ethics advice, fee disputes, and compliance with law or order.
  • •Attorney-client privilege is narrower and evidentiary; confidentiality is broader and continues after representation.

  California distinction

  • California’s duty under Business and Professions Code section 6068(e) is broader and permits-but does not require-disclosure to prevent a criminal act likely to cause death or substantial bodily harm, after reasonable efforts to dissuade and, where reasonable, notice to the client.

• Current-Client Conflict

  A lawyer must not represent a client if representation is directly adverse to another current client or materially limited by duties or personal interests, unless consentable and properly consented to.

  Elements / Factors

  1. 1Direct adversity or significant risk of material limitation.
  2. 2Lawyer reasonably believes competent and diligent representation is possible.
  3. 3Representation is not prohibited by law.
  4. 4Clients are not directly opposing each other in the same litigation or proceeding where nonconsentable.
  5. 5Each affected client gives informed consent in writing where required.

  Exceptions / Limitations

  • •Some conflicts are nonconsentable. Loyalty duties apply even to unrelated matters.
  • •Conflicts ordinarily impute throughout the firm subject to exceptions.

  California distinction

  • California requires informed written consent for direct adversity and specified material-limitation conflicts under Rule 1.7; disclosure and consent wording differ from the ABA formulation.

• Former-Client Conflict

  A lawyer may not represent a new client materially adverse to a former client in the same or a substantially related matter without informed consent.

  Elements / Factors

  1. 1Former attorney-client relationship.
  2. 2Same or substantially related matter.
  3. 3Material adversity.
  4. 4No informed written consent.

  Exceptions / Limitations

  • •Information generally known may not trigger the separate misuse restriction, but duties of loyalty and confidentiality remain.
  • •A firm may sometimes cure imputation through timely screening where rules allow.

  California distinction

  • California Rule 1.9 requires informed written consent and protects confidential information of former clients.

• Business Transaction with Client

  A lawyer entering a business transaction with a client or acquiring an adverse pecuniary interest must satisfy strict safeguards.

  Elements / Factors

  1. 1Terms fair and reasonable and fully disclosed in understandable writing.
  2. 2Written advice that client may seek independent counsel and reasonable opportunity to do so.
  3. 3Client’s informed written consent to essential terms and lawyer’s role.

  Exceptions / Limitations

  • •Ordinary fee agreements are governed separately.
  • •Gifts and literary/media rights have separate rules.

  California distinction

  • California Rule 1.8.1 requires the client’s informed written consent and written disclosure in a manner reasonably understandable to the client.

• Fees

  A lawyer may not charge or collect an illegal or unconscionable fee and must communicate the basis or rate as required.

  Elements / Factors

  1. 1Reasonableness or absence of unconscionability.
  2. 2Required written agreement.
  3. 3Proper handling of advances and costs.
  4. 4No prohibited contingency arrangement.

  Exceptions / Limitations

  • •Contingency fees are prohibited in criminal defense and limited in domestic-relations matters.
  • •Fee division requires client consent and compliance with governing rule.

  California distinction

  • California generally requires a written fee agreement when reasonably foreseeable total expense to the client, including attorney fees, will exceed $1,000, subject to statutory exceptions. California fee divisions require written client consent after full disclosure and may not increase the total fee solely due to division.

• Client Funds and Property

  A lawyer must safeguard client or third-person property, keep funds in a trust account, maintain records, notify interested persons, and promptly deliver undisputed funds.

  Elements / Factors

  1. 1Segregation from lawyer property.
  2. 2Deposit in proper trust account.
  3. 3Prompt notice and accounting.
  4. 4Prompt distribution of undisputed amount.
  5. 5Disputed portion held until resolution.

  Exceptions / Limitations

  • •Limited lawyer funds may remain to cover bank charges. Advance fees and flat fees require analysis under applicable rules.

  California distinction

  • California permits a flat fee to be deposited in an operating account only with required written disclosures and client agreement; otherwise advance fees belong in trust.

• Candor to Tribunal

  A lawyer must not knowingly make a false statement of material fact or law, fail to correct a material false statement, or offer evidence known to be false.

  Elements / Factors

  1. 1Knowledge of falsity.
  2. 2Statement, omission, or evidence before tribunal.
  3. 3Materiality where required.
  4. 4Failure to take reasonable remedial measures.

  Exceptions / Limitations

  • •Duties may require disclosure despite confidentiality and continue to conclusion of proceeding.
  • •A lawyer may refuse evidence reasonably believed false, except special treatment of criminal-defendant testimony.

  California distinction

  • California Rule 3.3 and statutory duties of candor must be analyzed with California’s strong confidentiality rule; do not automatically import every ABA disclosure exception.

• Communication with Represented Person

  A lawyer may not communicate about the subject of representation with a person known to be represented in the matter without consent of that person’s lawyer or legal authorization.

  Elements / Factors

  1. 1Actual knowledge of representation.
  2. 2Communication about subject of representation.
  3. 3No counsel consent or legal authorization.

  Exceptions / Limitations

  • •Parties may communicate directly.
  • •Government-contact and organizational-constituent issues require separate analysis.
  • •The rule does not bar communications on unrelated matters.

  California distinction

  • California Rule 4.2 defines covered organizational constituents and preserves communications authorized by law.

• Withdrawal

  A lawyer must withdraw when representation would violate law or rules, lawyer impairment materially limits ability, or the lawyer is discharged; permissive withdrawal requires a recognized ground and protection of the client.

  Elements / Factors

  1. 1Mandatory or permissive basis.
  2. 2Tribunal permission when required.
  3. 3Reasonable notice.
  4. 4Time for substitute counsel.
  5. 5Surrender papers and property.
  6. 6Refund unearned fees.

  Exceptions / Limitations

  • •A tribunal may order continued representation despite good cause for termination.

  California distinction

  • California requires release of client papers and property on request, whether or not the client has paid, subject to narrow law.