California Rules of Professional Conduct

California Rules of Professional Conduct

Rule 1-100 – Rule of Professional Conduct in General
Definitions
Firm – focus on “more than one” lawyer [ABA 1.0(c)]
Member – Cal. State Bar
Lawyer – Admitted to: Calif. State Bar; any US court; highest court of a foreign country
Associate – employee lawyer
Shareholder – in professional corporation [ABA 1.0(g)]
Scope of rules
Apply to members inside and outside of California
Non-member lawyers from other jurisdictions subject to rules while engaged in lawyer functions in California[ABA 8.5]
Rule 1-110 – Disciplinary Authority of State Bar
Required compliance with reprovals of discipline administered by bar
Rule 1-120 – Assisting, Soliciting, or Inducing Violations
Do not knowingly assist in any violation of these rules [ABA 5.2, 8.4]
Rule 1-200 – False Statements Regarding Admission to the State Bar
No false statements of material fact [ABA 8.1]
No furtherance of an application for admission if member knows person to be unqualified re character, education or other
Member may serve as counsel for an applicant
Rule 1-300 – Unauthorized Practice of Law
No aiding of a person in the unauthorized practice of law
No practicing in violation of regulations [ABA 5.5]
Rule 1-320 – Financial Arrangements with Non-lawyers
No sharing of legal fees with non-lawyers except [ABA 5.4]
To member’s estate; employee compensation and retirement plans; lawyer referral services operated within State Bar of Calif. Standards
No compensation for recommendation for employment (gift okay as long as not compensation)
No compensation or promises to media for publicity
Rule 1-400 – Advertising and Solicitation
Communication is
Use of name; stationary’ advertisement directed to general public; unsolicited correspondence [ABA 7.2, 7.3, 7.4, 7.5]
COPRAC - Website is a communication and an advertisement thus subject to the applicable prohibitions on false, misleading and deceptive messages
COPRAC - May not use a trade name or designation that implies or has a tendency to confuse or mislead the public; the same applies to a former governmental title that is not qualified (though even with qualifier may be inappropriate as confusing or misleading)
Solicitation is
Concerning availability for employment with motive pecuniary gain and delivered in person, by phone; by any means to a person known to be represented by counsel in the subject matter of the communication
COPRAC - Chat room not a solicitation but may still be an issue if it constitutes an intrusive or stress-causing communication; or if it is a communication with a person the attorney knows may not have the requisite emotional or mental state to make a reasonable judgment about retaining counsel
No solicitations unless family or prior professional relationship had or if protected by Constitution or in the discharge of professional duties
Communication or solicitation shall not
Be untrue; false or deceptive, tending to confuse or mislead; omit fact necessary to make not misleading; fail to indicate that it is a communication or solicitation; be transmitted in a intrusive or coercive manner; claim to be certified specialist unless true with name of certifying body
Retain for two years copy of all communication (present to Bar if requested)
Rule 1-500 – Agreements Restricting a Member’s Practice
No agreements to restrict the right to practice law [ABA 5.6]
Except within partnership agreement, but agreement cannot survive termination of the partnership/employment; or retirement benefits

b. No agreements that preclude reporting a violation of this rule

Rule 1-700 – Member as Candidate for Judicial Office
Candidates should comply with the Code of Judicial Ethics [ABA 8.2]
Candidate is member seeking judicial election; duty to comply ends with announcement of withdrawal or with results of election
Rule 1-710 – Member as Temporary Judge, Referee, or Court-appointed Arbitrator
Shall comply with Code of Judicial Ethics [ABA 2.4]
Rule 2-100 – Communication with a Represented Party
Do not communicate directly with unrepresented party about the subject of representation unless consent from other lawyer [ABA 4.2]
Includes constituents of organization
May communicate with public officer/board; with party initiating contact to seek independent legal advice, or if authorized by law
Organization – Cannot contact people who exercise managerial responsibility or if person’s statements would be binding on the organization in litigation
Cannot interfere with corporate counsel’s representation
In re Twitty
Attorney for co-defendant found in violation for communicating plea to AG from other represented defendant
La Jolla Cove
Okay for attorneys to contact directors for a represented corporation where the director’s separate counsel consents to the contact but the corporate counsel does not
Rule 2-200 – Financial Arrangements Among Lawyers
No fee division with lawyer outside the firm unless client has consented in writing and fee not unconscionable or increased just because of division [ABA 1.5(e)]
Referral fees not permitted (gift okay as long as not consideration)
Chambers v. Kay
Writing requirement for fee sharing agreements, thus agreement not enforced
Lawyer may still recover based on quantum meruit
Rule 2-300 – Sale or Purchase of a Law Practice or a Member, Living or Deceased
Fees may not be increased by reason of sale [ABA 1.17]
Prior to transfer offer written notice to clients; 90 days purchaser may act on behalf of client
Substitutions to be made; compliance with 3-300 (avoiding interests adverse to client) and 3-310 (avoiding representation to adverse interests); confidential information not to be disclosed to non-member in connection with sale
Admission to or retirement from partnership is not a sale
Rule 2-400 – Prohibited Discriminatory Conduct in a Law Practice
No unlawful discrimination or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation, religion, age or disability in
Employment or in accepting or termination representation of clients [ABA 8.4]
Prior final adjudication required
Rule 3-100 – Confidential Information of a Client
Lawyer shall not reveal information without informed consent [ABA 1.6]
May reveal to prevent death or substantial bodily harm
Must first make good faith effort to persuade client not to commit act or to prevent the threatened consequence; and inform client of member’s ability to reveal information
Reveal no more than is necessary
Once information revealed, must withdraw from case
Revelation permissive, not mandatory
COPRAC – Attorney’s sharing office space must take reasonable steps under the circumstances to
Ensure that clients and potential clients are not deceived, misled or confused regarding the nature of their relationship, and
Protect each client’s confidence and secrets

COPRAC – Attorney must uphold both
Duty to maintain client’s confidences by not revealing the client’s prior criminal conviction without the consent of the client; and
Duty not to intentionally mislead or deceive the court
COPRAC – Information is not privileged as between co-defendants if one lawyer represents both of them
Common interest attorneys may consult with each other on a protected basis thus may communicate as co-defendants
COPRAC – It is unethical for an attorney to institute conservator proceedings contrary to the client’s wishes since by doing so the attorney will be divulging the client’s interests and be representing conflicting interests
Should the client’s conduct interfere with or unduly inhibit the attorney’s ability to carry out the purpose for which the attorney was retained, withdrawal may be appropriate

Rule 3-110 – Failing to Act Competently
Member shall not intentionally, recklessly, or repeatedly fail to perform legal services without competence [ABA 1.1, 3.2]
Competence = diligence; learning and skill; mental, emotional and physical ability to perform services [ABA 1.3]
COPRAC – Attorneys must follow their professional responsibility duties when acting upon their beliefs and when advising clients
Attorney’s performance of duties to clients must not be adversely affected by the attorney’s personal beliefs
Attorney should be cognizant that their moral, social and religious beliefs and their exercise of their First Amendment rights could adversely affect the performance of their duties to clients
If insufficient learning and skill, member may perform by consulting/associating with other lawyer or by acquiring sufficient learning
Includes the duty to supervise the work of subordinate attorney and non-attorney employees [ABA 5.1, 5.2, 5.3]
Rule 3-120 – Sexual Relations with Clients
Definition
Member shall not
Require sex as condition of representation; employ coercion, intimidation or undue influence in entering into sexual relations with client; or continue representation if sexual relations cause member to perform legal services incompetently
(b) does not apply to sexual relations between members and spouses or to ongoing consensual relationships which predate representation [ABA 1.8(j)]
No imputation to firm [ABA 1.8(k)]
Rule 3-200 – Prohibited Objectives of Employment
Member not to continue/seek/accept employment if objective is without probable cause or not warranted under existing law or supported by good faith argument for extension, modification or reversal of such law [ABA 1.2(d), 3.1]
Zamos v. Stroud
An attorney may be held liable for malicious prosecution when he commences a lawsuit properly but then continues to prosecute if after learning it is not supported by probable cause
If client is committing perjury, lawyer cannot disclose this to the tribunal, nor can lawyer withdraw in the middle of trial
Utilize the “narrative” technique thus no eliciting
Cannot object, cannot refer to testimony during closing argument (thus the jury infers)
Rule 3-210 – Advising the Violation of Law
Member shall not advise such unless good faith belief that the law is invalid; may take steps in good faith to test the validity of law [ABA 1.2(d)]
Rule 3-300 – Avoiding Interests Adverse to Client
No business transaction or pecuniary interest adverse to client unless
Transaction is fair and reasonable, disclosed in writing; client advised in writing of desirability of seeking independent counsel; and client consents in writing [ABA 1.8]
Not an arm’s length transaction
COPRAC – An attorney performing both legal and non-legal services if subject to these rules with regard to all of the services
Certain compensation sharing arrangements with regard to non-legal services may be okay, but may still require written disclosure to the client and may constitute a business transaction
Fletcher v. Davis
Informed written consent to attorney’s acquisition of an interest adverse to the client applies to the transaction of lawyer securing payment of fees by obtaining a lien against client’s future recovery
Rule 3-310 – Avoiding Representation of Adverse Interests
Definitions of Disclosure, Informed written consent, and Written [ABA 1.0]
Member shall not accept/continue representation without written disclosure where
Legal, business, financial, professional or personal relation with a party or witness in the same matter; or
COPRAC – A defense attorney in a criminal case must disclose to the client and obtain the client’s consent to further representation when a police officer who is a former colleague of defense counsel and close personal friend will be a prosecution witness on a contested matter
Member knows or should know or a previous such relationship with a party or witness in the same matter; and
Previous relationship would substantially affect the member’s representation; or
Such relationship had with another person or entity the member knows would be affected substantially by resolution of the matter; or
Member has or had a legal, professional, or financial interest in the subject matter of the representation
Member shall not without informed written consent of each client: [ABA 1.7]
Accept rep. of more than one client if interests potentially conflict;
In re Celine R (Cal)
Court may appoint a single attorney to represent all of the siblings unless, at the time of the appointment, an actual conflict of interest exists
Flatt v. Superior Court (Cal)
Prospective client not told that statute of limitations was about to run when representation denied due to conflict
Normally that would be malpractice but in this instance the firm’s duty of loyalty to its current client overcame the firms duty to the prospective client
Hernandez v. Paicius (Cal Appeals)
When a client engages the services of a lawyer in a given piece of business he is entitled to feel that, until that business is finally disposed of in some manner, he has the undivided loyalty of the one upon whom he looks as his advocate and his champion
COPRAC – The attorney owes his or her loyalty to the insured, even where there are duties which are ordinarily owed by the attorney to the insurer
In situations where matters adverse to the insurer are discovered, even when insured has failed to be candid, the attorney may not reveal these matters to the insurer and may be required to withdrawal
Insurer can reserve its rights and hire another attorney
Accept/continue rep of more than one client where interests actually conflict;
Represent a client in one matter and separately accept a client whose interest in the first matter is adverse to the client in the first matter
Must have informed written consent of each client before entering into aggregate settlement
Informed written consent required for member to accept employment adverse to client or former client if member has obtained confidential information material to the employment [ABA 1.9, 1.10]
COPRAC - A person’s communication made to an attorney in a non-office setting may result in the attorney’s obligation to preserve the confidentiality of the communication
if an attorney-client relationship is created by the contact or
even if no attorney-client relationship is formed, the attorney’s words or actions induce in the speaker a reasonable belief that the speaker is consulting the attorney, in confidence, in his professional capacity to retain the attorney or to obtain legal services or advice
Factors: Use of first opportunity to stop the information; whether confidential information was disclosed
Screening as an option
Pour Le Bebe v. Guess? Inc.
“Substantial Relationship” test between prior and current clients
Determine if confidential information material to the dispute would normally have been imparted to the attorney
DCH Health Services
The mere appearance of impropriety is not a basis for disqualification
COPRAC–Broader professional responsibility to a client dictates that a member should not accept a representation adverse to a former client of the firm without first obtaining the former client’s informed consent when the members knows/should know that another lawyer in the firm obtained material confidential information from former client
Brand v. 20th Cent Insurance
Substantial relationship test causes the attorney’s knowledge of confidential information to be presumed
No compensation from one other than client unless
No interference with member’s independence or client-lawyer relationship and info protected; and
Informed written consent of client
Rule 3-320 – Relationship with Other Party’s Lawyer
No representation of a client in a matter in which another party’s lawyer is a spouse, parent, child, sibling, living with or having an intimate personal relationship with the member [generally ABA 1.8]

Rule 3-400 – Limiting Liability to Client
No contracting to limit member’s malpractice liability nor shall a member settle such a claim unless the client is informed in writing that she may seek independent counsel (and reasonable opportunity) [ABA 1.8]
Rule 3-500 – Communication
Keep client reasonably informed about significant developments; promptly comply with reasonably requests for information and copies of documents [ABA 1.4]
Rule 3-510 – Communication of Settlement Offer
Promptly communicate [ABA 1.4]
All terms and conditions of offer in criminal matter
All amounts, terms and conditions of any written offer of settlement in other matters (oral if significant)
Client as one with power to accept offer
Rule 3-600 – Organization as a Client
Client is the organization itself through its highest authority or constituent [ABA 1.13]
If member knows of violation of the law imputable to organization or likely to result in substantial injury to the organization, the member shall not violate the duty to protect all confidential information
May take action including – urge reconsideration or refer matter to higher authority within the organization
If still insistence upon or refusal to act thus violating law, member’s right and duty to resign
Explain identity of client to constituents if their interests are adverse to the organizations
Dual representation permitted with appropriate consent if required
Rule 3-700 – Termination of Employment
General
If permission required by tribunal, then permission must be obtained
Take reasonable steps to avoid reasonably foreseeable prejudice to rights of client (notice, time to find new counsel)
Mandatory [ABA 1. 16]
If client is bringing case without probable cause or for the purpose of harassing
If continued employment violates these rules
Member’s condition renders it unreasonably difficult to carry out employment effectively
Permissive only if
Client
Claim not warranted; pursues illegal course of conduct; insists member pursues illegal conduct; other conduct renders it unreasonably difficult to carry out employment effectively; insists that member engage in conduct contrary to judgment and advice of member (but not prohibited); breaches agreement re fees
Violation of these rules likely
COPRAC - Lawyer must avoid assisting in fraud in any way. If, after the lawyer’s advice to refrain from such activities, the client does not refrain, the lawyer must either limit the scope of representation or withdraw
May not disclose fraudulent conduct– duty of confidentiality
Best interests of client served via withdrawal (co-counsel)
Member’s condition renders it difficult to carry out employment effectively
Termination/assent of client to termination
Other good cause
Release to client appropriate papers, property and fees
COPRAC – No specific time requirement for retaining files in civil matters
If after making efforts to locate former client, the attorney may destroy the items unless there is reason to believe
Preservation of items is required by law or
Destruction of the items would cause prejudice to the client (ie necessary to representation)
COPRAC – Attorney remains of record for client until substitution papers filed
Attorney may only retain file in order to represent the client competently, but may not retain it in exchange for payment
Rule 4-100 – Preserving Identity of Funds and Property of a Client
Separate trust account to be maintained [ABA 1.15]
No member deposits except bank charges
Withdraw funds belonging to member at earliest reasonable time
disputed fund to remain in trust
Promptly notify client of receipt of funds; identify and label property; promptly pay funds client is entitled to receive
Maintain complete records and render appropriate accounts for five years
Rule 4-200 – Fees for Legal Services
Fee shall not be illegal or unconscionable [ABA 1.5]
Factors of conscionability – amount and value; sophistication of parties; novelty, difficulty and skill required; other employment precluded; amount involved and results obtained; time limitations; nature and length of professional relationship; experience, reputation and ability of lawyer; whether fee is fixed or contingent; time and labor; informed consent of client to fee
Contingent fees must be in writing (must be clear re terms and must be negotiable)
Fee negotiation at arm’s length (no fiduciary duty)
Must have informed consent of client as to fee
Focus on what the lawyer has actually earned
In re Wright
Must disclose to client the billing practices as to use of contract attorneys (need evidence of notice and consent)
B&P 6148 requires K foreseeably exceeding $1,000 to be in writing
Beard v. Goodrich
Attorney’s fees awarded in a case are awarded to the client, thus awarded fees are to be tacked onto other damages, then attorney may take a percentage of the whole lot
In California lawyers must send out monthly bills and disclose fact of costs in advance
Rule 4-300 – Purchasing Property at a Foreclosure or a Sale Subject to Judicial Review
No directly or indirectly purchasing property in proceeding in which member (or affiliate or firm) is acting as lawyer for a party as executor etc. [generally ABA 1.8]
No representing the seller if the purchaser is a spouse or relative of the member (or in firm or employee)
Rule 4-400 – Gifts from Client
No inducements of client to make a substantial gift to member or member’s family unless client is relative [ABA 1.8]
Rule 5-100 – Threatening Criminal, Administrative, or Disciplinary Charges
No threat to present criminal, administrative or disciplinary charges to obtain an advantage in a civil dispute
Rule 5-110 – Performing the Duty of Member in Government Service
Do not institute criminal charges when not supported by probable cause
If member becomes aware after instituting charges that they are not supported by probable cause, promptly so advise the court [ABA 3.8]
Rule 5-120 – Trial Publicity
Lawyer who is participating or had participated shall not make an extrajudicial statement which will be disseminated and has a substantial likelihood of materially prejudicing an adjudicative proceeding [ABA 3.6]
Lawyer may state
Claim/offense, identity; public record information; that investigation is in progress; scheduling/result of litigation; request for assistance in obtaining info and evidence; warning of danger if likelihood of substantial harm
Criminal case – identity, residence, occupation and family status of accused; information necessary to apprehend accused; fact, time and place of arrest; identity of officers
Limited countermeasures to adverse publicity

Rule 5-200 – Trial Conduct
Maintain means consistent with the truth [ABA 3.3, 3.4, 3.5, 8.4]
Seek not to mislead by false statement of fact or law
Do not misquote law/language or cite invalidated authority as binding
Do not assert personal knowledge of facts unless acting as witness
Rule 5-210 – Member as a Witness
Member shall not act as advocate in a trial if also a witness unless
Testimony relates to an uncontested matter; relates to legal services rendered or [ABA 3.7]
Member has informed written consent of the client
Rule 5-220 – Suppression of Evidence
Shall not suppress evidence that member or client has a legal obligation to reveal or produce [ABA 3.4]
Rule 5-300 – Contact with Officials
No gifts/loans to judges unless family/personal relationship had where such gifts are customary (campaign fund contribution okay)
No communication with judge upon merits of contested matter except
In open court, with consent of other counsel, in presence of other counsel, or with writing furnished to other counsel or in ex parte matters
Judge includes law clerks and court personnel [ABA 3.5]
Rule 5-310 – Prohibited Contact with Witnesses
Member shall not
Advise a person to secrete self or leave a jurisdiction;
directly or indirectly pay witness contingent on outcome of case
member may pay witness: expenses, compensation or reasonable fee for services of expert witness [ABA 3.4]
Rule 5-320 – Contact with Jurors
No communication with venire or jurors [ABA 3.5]
No communication of member not involved with any juror about the case; no communication after if intent is to harass, embarrass or influence
No out of court investigation of venire or juror (includes family members)
Member shall reveal promptly improper conduct by venire or juror or by another toward venire or juror