* Professional Responsibility | Alicia Jie-Hye Lee

* Professional Responsibility (ABA) *

(California Code is different from the American Bar Association (ABA) . .

It will be explained apart where it is written as CC)

** Duty of Confidentiality
1. Rule
  1. Do not reveal anything “related to the representation” of a client & do not use that information against your client without the consent of your client (As to CC: Although there are no ethics rule as to Duty of Confidentiality, there is an Attorney’s Oath, which the attorney promises to maintain confidences and secrets of his or her client) **
2. Timing
  1. The Duty of Confidentiality can be attached before a lawyer-client relationship is formed, or even if none is formed (i.e., If no employment results, the party who wants to disqualify a lawyer will bear the burden of proving confidences were actually impaired)
  2. If the duty of confidentiality is attached, it will exist even after formal representation ends, and even after the death of the client **
3. Attorney-Client Privilege v. Duty of Confidentiality
  1. Attorney-Client Privilege: Evidentiary rule that prevents a court from using its powers to compel the revelation of confidential communications between an attorney and a client. It only applies to confidential communications (e.g., conversations) between the attorney and the client in the court or litigation setting. Namely, if someone else is present when the attorney and the client are having a conversation, it is generally not confidential and, therefore, not covered by the privilege
  2. Duty of Confidentiality: A lawyer shall not reveal confidential information relating to the representation of the client unless the client gives informed consent. Unlike Attorney-Client Privilege, this duty applies to ALL information the attorney has about the client and applies to ALL scenarios not just the court or litigation setting **
4. Exceptions to the Duty of Confidentiality
  1. Informed Consent by the client – If the client gives informed consent after consultation, the lawyer may reveal otherwise confidential information
  2. Death or Substantial Bodily Harm – A lawyer may reveal what he reasonably believes is necessary to prevent a crime likely to result in reasonably certain death or substantial bodily harm
    1. As to CC, a lawyer must first, if reasonable under the circumstances, make a good faith effort to persuade the client not to commit the act and inform the client of your decision to reveal the confidence **
  3. Fraud or financial crimes - A lawyer may reveal if the client used or is using his or her service to commit a crime and the disclosure would prevent or mitigate substantial financial loss
    1. As to CC, it does not have this financial exception to confidentiality
  4. Attorney Defense – A lawyer may reveal client confidence to establish a claim or defense in a malpractice action against him or her, action for recovery of fees, or disciplinary action (i.e., punishment of a member of a profession or organization who has committed a breach of a code of conduct) against him or her
  5. A lawyer may reveal client confidence if compelled by law or final court order **

2. Duty of Loyalty (Conflict of Interest)

Concurrent Conflict of Interest
1. A lawyer has a duty of loyalty to his or her client where the interest of a lawyer, another client, or a third party materially limit or is adverse to the loyal representation of his or her client
  1. Potential Conflict: The lawyer must not take the case unless (i) the lawyer reasonably believes that he or she can competently and diligently represent the clients despite the potential conflict; (ii) representation is not prohibited by law; (iii) there is no conflict of claim by the clients in the same litigation or other proceeding before a tribunal; and (iv) clients give informed consent in writing
  2. Actual conflict: If the conflict emerges after representation begins (i) disclose the conflict; and (ii) get further informed consent in writing **
    1. As to CC, it strictly requires informed consent in writing for a Potential Conflict, and if it ripens to an Actual Conflict it additionally needs written disclosure
Imputed Disqualification
1. Definition: Any group of lawyers that work together closely or share responsibilities share each conflicts (e.g., private firms or corporate law departments), thus an entire law firm is barred from representing a client because one or more of its lawyers is personally disqualified from representing that client because of a conflict of interest
2. Exceptions: The entire law firm may not be barred even though there exists a conflict of interest by a disqualified lawyer, and other lawyers may take the case only if:
  1. the personally disqualified lawyer is timely screened from any participation in the matter;
  2. the lawyer who has a conflict of interest is apportioned no part of fee (except for pre-arranged salaries or partnership shares); and
  3. written notice is promptly given to the affected former client **
3. As to CC, it used to disqualify all the lawyers in the law firm in the past, but currently is becoming more receptive to the above screening process
Remedies
1. When the lawyer feels he or she could violate the Duty of Loyalty in taking the case, he or she should:
  1. refuse to take the case,
  2. withdraw, or
  3. advise the clients to take separate counsels
    1. A reasonable lawyer would have to advice the affected client not to consent to conflict of interest
    2. Ignorance of the conflict of interest is no excuse, unless it arises from short-term legal services under a court, agency, or non-profit program **
Examples to Conflict of Interest
1. Representing both sides in the same proceeding before a tribunal
  1. If the parties are in direct conflict, it is unreasonable to represent both clients ( = Absolute Prohibition)
2. Two clients with inconsistent positions
  1. If either one of the client would be disadvantaged, consent is needed by both parties in writing in order for the lawyer to represent both clients
    1. Yet if either party would be disadvantaged you must withdraw
3. Conflict with a current client in another matter: All parties must consent in order for the lawyer to represent
  1. Exception: California Indemnity Insurance Exception (i.e., there is no conflict of interest when a lawyer represents a policy holder and his or her insurance company as joint clients as an indemnity provider)
4. Representing multiple clients in the same matter: Representing multiple clients in the same matter would likely present a risk materially limiting other clients' interest
  1. The lawyer may represent only if lawyer concludes he or she can effectively represent all clients
  2. Yet again, need all clients’ consent before his or her representation
  3. If a direct conflict develops, may be best to withdraw from the case and advise to the clients to attain separate attorney
  4. Example) representing both corporation and its employees & representing both spouses in a divorce proceedings & drafting wills to multiple parties) **
5. New Clients in Matters Related to Former Client
  1. A lawyer cannot take on a new client, if the matter of the new client is same or substantially related matter that materially adverse the interests of the former client, without the informed consent by the former client
  2. Use of non-public confidential information against a former client is unreasonable
  3. Imputed Disqualification applies (see above)
6. Former Government Lawyer That Moves to Private Practice
  1. If a government lawyer who worked personally and substantially on a matter, the government lawyer cannot work on that same matter in his or her later private practice without the consent by the Government employer
  2. As to CC, explicitly bars prosecutors from later working on the defense of the same case
  3. Imputed Disqualification applies (see above) **
Conflict Between the Lawyer and the Client
1. Literary & Media Rights Based on Representation
  1. A lawyer cannot make or negotiate literary or media agreement as to his or her case before the representation is ended
  2. As to CC, a lawyer generally cannot make or negotiate literary or media agreement as to his or her case before the representation ends, yet can tolerate them if the judge is satisfied that the client (1) clearly understands, and (2) consents
2. Loans to Client
  1. Forbids all financial assistance toward the client by a lawyer, except for (i) costs and litigation expenses when representing an indigent, and (ii) the advance of litigation expenses in contingent fee (i.e., a fee charged for the service by the lawyer that is payable only if a lawsuit is successful or results in a favorable settlement to the client) **
  2. As to CC, the law prohibits the promise of paying the debts of a prospective client, yet allows loans in all matters for any purpose after the lawyer is hired, as long as there is a written loan agreement
3. Property for Service
  1. A lawyer may accept property in return for services instead of money, as long as the property is not the subject matter of the litigation, or does not involve a proprietary interest (i.e., profits, rights, ownership shares held by the full or partial owner of a property) the cause of action **
4. Business Transactions
  1. A lawyer may enter into business with a client and obtain an adverse interest (i.e., claim or right that disadvantages and is against his or her client) if:
    1. The terms of the Transaction are fair and reasonable to the client under the circumstances known to the lawyer when the interest was acquired,
    2. The terms are fully disclosed in an understandable writing to the client,
    3. The client has an opportunity to consult outside counsel as to the business transaction the lawyer entered into, and
    4. The client provides written consent to the lawyer **
5. Board Service
  1. Board (i.e., Board of Directors) Service, generally in non-profit not corporate, is a service made by the Board who are fiduciaries who manage the organization toward a sustainable future by adopting sound ethical, and legal governance and financial management policies, as well as by making sure the nonprofit has adequate resources to advance its mission
  2. However, a lawyer is strongly discouraged in serving as a Board member because he or she is likely to violate the duties of loyalty and confidentiality to his or her client for the benefit of his or her own
    1. Thus, a lawyer may serve as a Board Member of legal services organization that is not his or her employer, as long as he or she does not knowingly participate in a decision or action of the organization adverse to his or her client **
6. Trial Lawyer as a Necessary Witness
  1. A lawyer cannot serve as lawyer and witness in the same trial unless:
    1. the appearance by the lawyer as a witness will not prejudice the client,
    2. the testimony by the lawyer is uncontested,
    3. the testimony is about the legal service rendered by the lawyer, or
    4. withdrawal by the lawyer in the case will impose substantial hardship on the client **
  2. As to CC, a lawyer may testify in any bench trial (i.e., a trial by a judge), and if the client contests, in a jury trial (i.e., a trial by a jury) as well
7. Close Relationship with Adverse Lawyer
  1. When two lawyers have close relationship by blood or marriage and represent different clients in a same matter, the lawyers need informed consent of all parties
  2. As to CC, the lawyer needs written disclosure along with disclosure of any legal, business, or personal relationship with any party or witness **
8. Sexual Relationship with a client
  1. Lawyer must not have sexual relationship with a client unless the lawyer and client had consensual sexual relationship before the lawyer-client relationship had begun
  2. As to CC, it does not prohibit sexual relationship except when lawyer: (a) demands sexual relationship as a condition for professional representation, (b) enters into sexual relationship with the client by coercion or undue influence, or (c) represents the client incompetently because of the sexual relationship **
9. Gift
  1. A lawyer must not induce a substantial gift from a client, or draft a legal instrument for a client who is not his or her close relative if it provides a substantial gift
  2. As to CC, the law does not bar preparing instrument for a client, yet only bars inducing gifts from a client
10. Limiting Liability
  1. A lawyer cannot proscriptively limit the right of his or her client to report for ethical or other professional violations by the lawyer
  2. A lawyer cannot limit his or her malpractice liability when the lawyer enter into a relationship with his or her client **
  3. Exception
    1. However, ABA has an allows limiting the malpractice liability by the lawyer if the client is independently represented in the agreement
    2. A malpractice claim could be settled only after giving written advice to his or her client to consult an independent counsel
      1. As to CC, it does not have this Exception
Conflict Due to the Third Party Interference
1. Rule: The duty of the lawyer is to the client, not to the third party
  1. Note that the payment of the lawyer service from a third party is permitted only with the informed consent by the client **
  2. Clients within an organization
    1. Rule: A lawyer must act in the best interests of the organization, even if an officer, employee, or other associated persons acts to the contrary
      1. First, if a lawyer knows an officer or an employee engaged, or intends to act contrary to legal obligation toward the organization or law that might be imputed to organization, the lawyer shall proceed as reasonably necessary in the best interests of the organization
      2. Next, the lawyer must report up (i.e., report the matter to a higher authority (e.g., CEO or Chief Legal Counsel) in the organization)
      3. Lastly, if the higher authority does not respond, the lawyer must report up to the highest authority (e.g., Board of Directors) **
        
        Note 1: If a lawyer reasonably believes it is necessary to prevent fraud or substantial injury to the organization or investors, or if his or her legal services were used, he or she may disclose confidential information without the client consent
        
        Note 2
        
        Under ABA, “report up” is a duty while “report out (i.e., reporting the misconduct to a regulatory body or a prosecutor)” is permitted but limited
        
        As to CC, “report up” is permitted while “report out” is prohibited (i.e., yet, these days, due to federal preemption (i.e., when state law and federal law conflict, federal law rules), CA lawyers cannot be disciplined for complying with federal law in certain cases) **

3. Financial Duties to Your Client

Attorney Fees
1. Non-Contingent Fee Cases
  1. Definition of Non-Contingent Fee: The attorney is paid on an hourly rate, flat fee or some other version that is not conditioned on the outcome of the case
    1. Under ABA, the attorney is paid under non-contingent fee cases based on:
      1. How fee is calculated
      2. What service is included
      3. The duty of the lawyer and client
    2. As to CC, it adds an additional information that,
      1. the fee agreement must be in writing unless:
        
        the attorney fee is under $1,000
        
        the client is a corporate client
        
        the client is your regular client
        
        emergency or impractical
2. Contingent Fee Cases
  1. Definition of Contingent Fee: An attorney fee for services (as of a lawyer) paid upon successful completion of the services
    1. Under ABA, the requirement of the contingent fee is:
      1. written fee agreement, which is signed by the client
      2. fee percentage of the lawyer
      3. deductible expenses
      4. whether the fee is taken before or after the legal fees have been paid **
    2. As to CC, it adds an additional information that,
      1. how the work that is not covered by the contingent fee is paid
      2. the attorney fees are negotiable
  2. Limitation of Contingent Fee
    1. Under ABA: The contingent fee cannot be used in domestic relation (e.g., divorce) or criminal cases
    2. As to CC: The contingent fee can be used in domestic relations (e.g., divorce) as long as the fee arrangement will not encourage a breakup, and it is silent as to whether the contingent fee can be used in criminal cases
    3. Termination Before Judgment Awarded
      1. Rule: If the attorney is fired before judgment, and the client wins, the attorney can recover reasonable fees in proportion to the work he or she performed
Level of Fees
1. Under ABA: The attorney fee must be reasonable taking into account the totality of the circumstances (i.e., labor, difficulty, skill, timing, result obtained, the experience and other demands on the attorney)
2. As to CC: The attorney fee must not be unconscionably high **
In Case of Fee Dispute
1. Under ABA: In case there is a fee dispute between a client and a lawyer, the court encourages arbitration
2. As to CC: California requires a lawyer to participate in fee arbitration if when the client sues and request arbitration **
Expert Fee
1. Rule
  1. The attorney is only allowed to compensate the expert witness for his or her services in the case such as depositions, preparing for trial and testifying, as long as it is not contingent
Fee Splitting with Lawyers
1. Within the law firm: The lawyer may generally split fees with other lawyers
2. Not within the law firm
  1. A lawyer may split fees with lawyers not in your law firm if:
    1. the total fee is reasonable,
    2. there is a informed consent from the client, and
    3. the total fee does not increase
      1. Note that ABA further requires the fee division to be proportional to the work done by each lawyer, unless each lawyer is jointly responsible for the action, which then, the fee will be half-half
  2. As to CC, a lawyer may split fees with lawyers not in your law firm if:
    1. the total fee is not unconscionable, and
    2. the client gives written consent **
Fee Splitting with Non-lawyers
1. Rule: Generally, fee spitting with non-lawyers is not allowed
2. Exceptions:
  1. Death benefits paid for a reasonable time to a law firm of the deceased lawyer, or heirs of the deceased lawyer for his or her legal work
  2. Lawyer fees that is passed on as pension and pre-arranged salaries for non-lawyer employees
  3. Court-awarded legal fees with a non-profit organization that employed or recommended the lawyer
  4. Usual charges of a qualified lawyer referral service (i.e., a service that maintains a network of lawyers, and connects people in need of lawyers with its participating lawyers) **
Partnership with Non-lawyers
1. Rule: Generally, partnership with non-lawyers is prohibited if the purpose of the partnerships is providing legal service, because non-lawyers can neither be partners, shareholders, officers, nor control professional judgment of the lawyer
2. Exception
  1. Reciprocal Referral Arrangement (i.e., a service that maintains a network of non-lawyer professionals or lawyers, and connects people in need of non-lawyer professionals or lawyers)
    1. A lawyer may enter a reciprocal referral arrangement with a non-lawyer professional or another lawyer, provided it is not exclusive and the lawyer explains the arrangement to the client at the time of the referral
Client Trust Accounts
1. Rule: Lawyer has the duty to safeguard the funds of his or her client **
2. Duty by the Lawyer
  1. The funds held for the client must be placed in a client trust account
  2. The lawyer must not borrow or commingle the funds
  3. If the funds are held in an interest bearing trust account (i.e., an account that lets the client earn interest on the funds deposited into it), the interest belongs to the client
  4. As to smaller funds, that are held for a short period of time for several clients, it can be deposited into a "pooled client trust account". The interest, in this case, is used for public good which is safeguarded by the supreme court guidelines
  5. As for the disputed funds, the lawyer must withhold the disputed portion in the client trust account until the problem is resolved
  6. The lawyer has a duty to keep good records as to the funds and notify the records to the client **

4. Competence

Duty of Competence
1. Definition: Duty of a lawyer to use competent legal skill, knowledge, thoroughness, and preparation reasonably necessary for his or her client representation
2. Unfamiliarity of Law
  1. If a lawyer is unfamiliar with the relevant law, a lawyer cannot take on the matter unless:
    1. he or she believes he or she can put in the time to learn about the relevant law without undue expense or delay to the client and actually does competently get to achieve the knowledge as to the relevant law, or
    2. he or she associates with another lawyer who is competent in that area of law
3. Liability by violating the Duty of Competence
  1. Discipline by the ABA (i.e., as to CC, a lawyer is subject to discipline if the lawyer intentionally, recklessly or repeatedly fail to perform legal service with competence)
  2. Disqualification in a litigated matter
  3. Civil Malpractice Liability (i.e., a legal malpractice that happens when a lawyer handles a case inappropriately due to negligence (see Torts) or with intent to harm and causes damages to a client. In order for the client to prevail in a legal malpractice lawsuit, the client will need to prove (a) an attorney-client relationship existed, (b) the duty of due care to provide skillful and competent representation by the lawyer did not meet, (c) the lawyer caused the financial cost of the client, and (d) the client incurred financial loss)
Duty of Diligence
1. Definition: A lawyer must diligently, promptly, and reasonably pursue the case to completion **
Duty to Communicate
1. Definition: A lawyer has a duty to keep the client informed about the case, including settlement offers and phone calls/emails
Duty of Lawyer Representation
1. Acceptance of Representation
  1. The lawyer can accept or reject any case on his or her own accord (i.e., however, it is recommended that the lawyer accept cases as part of the duty to the public and profession)
2. Rejection of Representation
  1. The lawyer must reject cases if:
    1. the case would violate the law or ethical rule if the lawyer took the case,
    2. the lawyer is physically or mentally incompetent, or
    3. if the case would make the lawyer to make frivolous legal argument **
3. Extent of Representation
  1. Client is entitled to decide about:
    1. his or her substantive rights (e.g., whether to testify in criminal case, whether to accept the bargain, or whether to accept a settlement offer)
  2. Lawyer is entitled to decide about:
    1. legal procedure and legal strategy (e.g., choice of civil procedures or discovery decision (i.e., the exchange of legal information and known facts of a case between the parties under the direction by the court system in order for the parties involved can decide what their best possible choice is before trial or negotiate an early settlement))
      1. Note that If client and lawyer disagree, both parties need to limit the extent with the consent of the client. In addition, the extent does not include assisting a client in conduct that is criminal or advising the client on how to act illegally and succeed **
4. Withdrawal of Representation
  1. Definition of Withdrawal of Representation: Lawyer terminating a relationship of representing a client
  2. Types of Withdrawal
    1. Client fires the Lawyer
    2. Withdrawal
      1. Withdrawal that is mandatory
        
        The withdrawal by the lawyer is mandatory when:
        
        continuing the case would violate an ethical rule or law,
        
        the lawyer is discharged (i.e., dismiss from employment), or
        
        the physical or mental condition of the lawyer impairs his or her ability to represent client adequately
        
        As to CC, it adds, when the lawyer knows that the client is acting without probable cause (i.e., reasonable basis to believe that a crime may have been committed) and the client is acting to harass or recklessly injure another person
      2. Withdrawal that is permissive
        
        The withdrawal by the lawyer is permissive when:
        
        the lawyer could convince the court that there is 'recognized cause', and the withdrawal will not cause undue delay or disruption to a case
        
        Types of recognized cause
        
        failure of client to pay fee arrangement after a reasonable warning,
        
        illegal activity of the client (i.e., the client uses the lawyer service to commit crime),
        
        purpose of the action is repugnant (i.e., unacceptable) or imprudent (i.e., lack of care for the consequences of an action), or
        
        damage to interest of the client **
  3. Procedure for Withdrawal
    1. First, provide timely notice to the client
    2. Next, promptly return any unspent fee and expense advances, all important property and papers of the client, which includes everything that was used to pursue the case
      1. As to CC, it forbids holding important property and papers hostage to get paid

5. Duty of Candor to the Public & Dignity of the Profession

Advertisement (= Ad)
1. Commercial Speech
  1. Rule: A state can regulate an ad by an attorney using commercial speech under the First Amendment Commercial Speech Doctrine (i.e., the commercial speech made by the attorney must not be false, ambiguous or unlawful; the regulation by the state as to the commercial by the attorney must have a proper interest; the regulation by the state must directly advance that interest; and the regulation must not be extensive to serve that interest)
2. Rule of Ad by Attorneys
  1. The ad must not be false, ambiguous or unlawful
    1. False: The ad must not raise unjustified expectations to the clients, or make unverifiable comparison with another attorney or a law firm
      1. As to CC, the the ad is presumed improper if the ad contains guaranty, warranty, or prediction of a result unless there is an express disclaimer (i.e., expressly states the attorney who are involved in the ad will not be responsible for any inaccuracy of the ad) that implies the ad is not a guarantee, warranty, or prediction of a result
    2. Ambiguous: Do not forget to include important information **
  2. Claims of legal specialization
    1. Rule
      1. The ad must not include specialization unless the attorney is a “certified specialist (i.e., the certification by approved institutions and require the certifying institutions be identified)”
      2. As to CC, Legal specialization requires information as to Experience, Examination, Education and Evaluation of the attorney
  3. Targeted direct mail
    1. Rule
      1. Ad must not harass an individual who has indicated that he or she does not want to receive any related mail
      2. However, ad that targets directly to prospective clients are permissible, as long as it meets exact guidelines for labeling as “advertising material”, and if applicable, “dramatization” or “impersonation”
      3. The ad must identify at least one attorney responsible for its contents **
Solicitation
1. Rule
  1. A lawyer cannot seek professional employment for pecuniary (i.e., financial) gain by initiating a live or telephone contact with a person with whom the lawyer has no prior professional, personal or familial relationship
  2. As to CC, internet communication between a lawyer and a potential client is allowed. However, a communication by a lawyer to a potential client, who just had an accident or en route to a medical facility and deemed to be not in a stable physical or mental state, is improper

6. Duty of Candor & Fairness

Duty of Candor to the Court & Fairness to the Adversary
1. Definition: A lawyer is prohibited from engaging in a conduct involving dishonesty, fraud, or deceit toward the court and the adversary
  1. Note that the Duty of Candor to the Court & Fairness to the Adversary beats the Duty of Confidentiality (see above) & Duty of Loyalty (see above). That is, the Duty of Confidentiality & Duty of Loyalty could be breached in order to abide by the Duty of Candor to the Court & Fairness to the Adversary **
Duty to Present Fact, State Law & Produce Evidence Truthfully
1. Duty to Present Fact Truthfully
  1. Rule
    1. A lawyer has a duty not to make a false statement of an important fact
    2. A lawyer has a duty not to provide evidence that the lawyer knows is false to the court
    3. A lawyer has a duty not to fail to correct a false statement of an important fact that the lawyer previously made or presented to the court
    4. A lawyer has a duty to prevent client perjury
      1. Definition of Perjury
        
        The criminal act knowingly making a false statement as to an important issue in court
        
        As to CC, it adds the potential effect of the false statement will have on the aftereffect of the proceeding **
      2. Rule
        
        A lawyer must not knowingly facilitate client perjury
        
        Civil case
        
        A lawyer must refuse to call the client as a witness if the lawyer knows the client intends to perjure himself or herself
        
        Criminal case
        
        Because of the right to testify of the witness (= the client of the lawyer) and the right to effective counsel by the lawyer, the lawyer must call the witness to stand; however, the lawyer must:
        
        counsel the client to testify truthfully or not take the stand, and
        
        if that does not work, the lawyer must tell the judge about the perjury (i.e., duty of confidentiality for the client does not protect perjury) or withdraw from the case
        
        As to CC, the court allows the D to testify in narrative fashion under the condition as long as the narration does not further the deception
        
        If a client tells the lawyer he or she lied after the proceedings, the lawyer must take reasonable remedial measures until the proceedings absolutely end **
2. Duty to Produce Evidence Truthfully
  1. Definition: A lawyer must not hide any evidence that the lawyer and the client has a legal obligation to reveal or produce, regardless of duty of loyalty (see above) to the client
  2. Rule
    1. A lawyer must not interrupt access to, or tamper with important instrumentalities of a crime
    2. A lawyer must distinguish between the duty to produce physical evidence and confidential communication
      1. Example) D meets a lawyer with cocaine. D says that he or she has been selling drugs and D needs legal help. In this case, the lawyer has a duty to deliver drugs to the authorities yet may not disclose the conversation the lawyer had with D
      2. Example) If D tells a lawyer where the D hid a gun, the lawyer may look at the evidence yet may not interfere (i.e., change the location of the gun) the evidence. However, if the lawyer did interfere with the gun, retrieved and examined the gun, the lawyer is now compelled to produce the evidence and compelled to testify where the gun was found to the authority (i.e., unless the information of the location must be remained confidential)
        
        Note that a lawyer may retain evidence for a reasonable time to prepare cases, including conducting tests, as long as the lawyer does not alter or destroy the evidence
        
        Additionally, prosecutors will have a special duty to timely disclose an evidence that is favorable to the defense (i.e., the lawyer team who is representing the D) **
3. Duty to State Law Truthfully
  1. Definition: The lawyer must not knowingly make a false statement of law to the court
  2. Rule
    1. The lawyer cannot knowingly present frivolous (i.e., intent to harass or embarrass a party) claims or defenses to the court
    2. The lawyer cannot knowingly forget to cite adverse authority if the cite is important and is from the controlling jurisdiction concerning the issue
    3. If the lawyer make a false state of law to the court, the lawyer will be disciplined ( = punished)

7. Duty of Prosecutors

Definition: Prosecutors have a basic duty is to seek justice, not just win cases
1. Rule
  1. Prosecutors need to refrain from stating extrajudicial statement (i.e., a written or verbal statement that is made outside the court. Under this rule, prosecutors should use reasonable care to prevent persons associated with the case from stating extrajudicial statement as well)
  2. Prosecutors need to timely disclose evidence including exculpatory evidence (i.e., an evidence that could decrease or relieve the guilt of the D) that are favorable to the defense (i.e., the lawyer team who is representing the D)
  3. Prosecutors need to have probable cause to bring the case to the court
  4. Prosecutors need to ensure that the D has been advised of right to counsel
  5. Prosecutor need to refrain from acquiring evidence from D who does not have a lawyer to be represented
  6. Prosecutors need to remedy a conviction if there is a clear and convincing evidence convicted D did not commit the crime at issue
  7. Prosecutors need to have higher ethical duties than criminal defense or civil attorney
  8. Prosecutors need to call the defense lawyer in a criminal proceeding to present evidence **

8. Additional Duty of Lawyers

Duty of Fairness
1. Definition: The lawyer has a duty to behave honestly in all dealings, whether or not engaged in the practice of law, and forbid using threats to bring disciplinary, administrative, or criminal proceedings as leverage in a civil dispute
2. Rule
  1. Lawyer must act to promote public confidence in the integrity and efficiency of the legal system and profession
  2. Lawyer must not lie to people or mislead them as to the interest of the lawyer
  3. Lawyer must not violate the legal rights of a person to acquire evidence
  4. Lawyer must not burden, delay or embarrass a client **
Duty to a Party Represented by Counsel
1. Definition: The lawyer must not communicate with a person who he or she knows is represented by another lawyer on the subject of the case without consent of his or her lawyer
2. Rule
  1. The lawyer, however, may communicate with a person who he or she knows is represented by another lawyer on the subject of the case without consent of his or her lawyer if:
    1. authorized by law; or
    2. to give a second legal opinion (i.e., a second lawyer giving his or her opinion to the client to make sure advice from the first lawyer is correct)
  2. As to CC, a case that is related to organization, a lawyer cannot communicate with a person working in the organization, without his or her consent of the lawyer, who:
    1. regularly consults or supervises with his or her lawyer in the organization or corporation about the matter, or
    2. has authority to give obligation to the organization or corporation with respect to the matter as well as the obligation of the person is likely to be imputed to the organization or corporation **
Duty to Expedite Cases
1. Rule
  1. A lawyer must not delay cases to harass an adversary
  2. A lawyer must not delay cases for the personal gain
  3. A lawyer must not delay cases for the convenience of the lawyer
  4. A lawyer has a duty to follow court procedural rules to expedite the case, unless the lawyer can make a good faith challenge
Duty to Press
1. Definition: The lawyer has a duty not to interfere with the right of the D to a fair trial (i.e., the right to a fair trial of the D is balanced against the press and and the right to know by the public)
2. Rule
  1. A lawyer must avoid out of court statements that they reasonably should know have a substantial likelihood of materially prejudicing the case of the D
    1. Exceptions
      1. A lawyer may state out of court statements even if there is a substantial likelihood it could prejudice the case if:
        
        it is a matter of warning the public,
        
        it is a matter of informing the public of a continuous investigation,
        
        it is a matter of asking for help to the public, or
        
        it is a matter of statements required to protect your clients from undue prejudice from recent publicity **
Duty to Preserve the Impartiality and Decorum of the Tribunal
1. Rule
  1. Lawyer before or during trial a lawyer must not talk to any prospective or empanelled ( = chosen) juror
  2. Lawyer, after trial, however, may interview jurors as long as the lawyer does not negatively influence their future jury service
  3. Lawyer should not try to influence anyone improperly
  4. Lawyer must refrain from abusive (i.e., disrespectful) conduct
  5. Lawyer must refrain from disruptive (i.e., unreasonable) conduct
Duty under Unauthorized Practice of Law
1. Rule
  1. A lawyer must not engage in the unauthorized (i.e., unlicensed / suspended) practice of law
  2. A lawyer must not assist a person who is not a member of the bar in the performance of an activity that constitutes the unauthorized practice of law
  3. A lawyer may hire a currently disbarred lawyer as a paralegal (i.e., a person who performs delegated legal work for which a lawyer is ultimately responsible. They perform a variety of tasks which include retaining and organizing files, drafting documents and conducting legal research), however, the paralegal must not engage in activities that constitute the practice of law
  4. A lawyer who is from out-of-state (i.e., registered legal services lawyer, registered in-house counsel for an institution, litigating lawyers practicing temporarily in the state, non-litigating attorneys practicing temporarily in the state) may practice temporarily in the state if:
    1. the out-of-state lawyer associates with a locally admitted in-state lawyer who actively participates in the issue, or
    2. the services is relate to alternative dispute resolution (i.e., the procedure for settling disputes without litigation, such as arbitration or negotiation)
      1. As to CC, in order for an out-of-state lawyer to practice temporarily, the out-of-state lawyer must:
        
        register with CA Bar
        
        pay dues
        
        continue legal education requirements
        
        be subject to CA ethics rules **
Duty of Subordinate Lawyers
1. Definition: A duty of a subordinate lawyer (i.e., a lawyer who has a lower ranking when compared to the lawyers who are appointed in a certain case), when the lawyer is under the control of another lawyer, and the lawyer ratifies or orders them to take an action violating an ethical rule
2. Rule
  1. When the subordinate lawyer actually acts, according to what they are told by the other lawyers, violating an ethical rule:
    1. the subordinate lawyer is subject to discipline, if there is a clear violation of the ethical rule
    2. the subordinate lawyer is not subject to discipline, if the violation is related to a debatable ethical problem
  2. A lawyer has a duty to make reasonable efforts to ensure all conduct of the employees comports with the professional duties of a lawyer including non-lawyer assistant (i.e., paralegal)
    1. As to CC, a lawyer can be disciplined for knowing about a disciplinary violation of a fellow law firm lawyer
    2. Additionally, a lawyer can also be disciplined for not taking action to prevent the violation of the fellow law firm lawyer **
Duty to Report Misconduct
1. Rule
  1. A lawyer has a duty to report any violation of the above rules of another lawyer in a legal or non-legal context if it raises an important issue as to the honesty, trustworthiness, or fitness of a lawyer or a judge
  2. As to CC, a lawyer requires self-reporting of lawyers being charged with a felony or certain crimes, found civilly liable for fraud or breach of fiduciary duty, or under certain conditions, sued for malpractice or sanctioned
    1. Note that in CA, a lawyer can be disciplined for knowing about a disciplinary violation of a fellow law firm lawyer and not taking action to prevent the violation (i.e., in this case, a lawyer should counsel the lawyer, or tell another person taking charge of this types of issue) **
Duty Not to Violate the Rights of Third Parties
1. Rule
  1. Lawyers cannot violate the rights of the third parties in the course of representing a client (e.g., violating the rights of the wife while representing the husband)
Duty to the Jury
1. Rule
  1. A lawyer before or during trial a lawyer must not talk to any prospective or empanelled ( = chosen) juror
  2. A law after trial, however, may interview jurors as long as the lawyer does not harass or influence their future jury service
Duty to the Unrepresented Party
1. Rule
  1. A lawyer, if meeting with a person who is not represented by an attorney, must not make any indications that he represents that person’s interests or is impartial **

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