Professional Responsibility
Regulation of the legal profession, duties to clients, courts, and third parties under the ABA Model Rules and California Rules of Professional Conduct.
California Emphasis
The CA Bar tests Professional Responsibility (PR) on every exam as either an essay or a performance test component. California adopted new Rules of Professional Conduct effective November 1, 2018, which largely track the ABA Model Rules but retain important California-specific differences. You must discuss both ABA and California rules on every PR essay. Always state the ABA rule first, then note how California differs.
I. Overview & Sources of Regulation
A. Sources of Professional Responsibility Law
- ABA Model Rules of Professional Conduct (MR): The national standard adopted (with variations) by most states. Not binding in California, but the CA Bar expects you to analyze under both ABA and CA rules.
- California Rules of Professional Conduct (CA RPC): Adopted by the California Supreme Court, effective November 1, 2018. These are the binding rules for California attorneys.
- California Business & Professions Code (B&P): Sections 6000-6228 govern attorney conduct, including the duty of confidentiality (B&P 6068(e)), grounds for discipline, and unauthorized practice.
- California State Bar Act: The statutory framework establishing the State Bar and governing admission, discipline, and regulation.
- Case Law: California and federal courts interpret and supplement the rules. Key cases (e.g., Flatt v. Superior Court, In re Complex Asbestos Litigation) shape disqualification and conflict doctrines.
- ABA Formal & Informal Ethics Opinions: Persuasive authority interpreting the Model Rules.
- Restatement (Third) of the Law Governing Lawyers: Persuasive authority, sometimes cited by California courts.
Exam Tip
On the CA Bar, always structure your PR essay by stating the ABA Model Rule, analyzing it, then pivoting: "Under California, the rule differs in that..." This dual-track approach is expected and will earn maximum points.
B. Admission to the Bar & Unauthorized Practice of Law (UPL)
Admission Requirements
- Character & Fitness: Applicants must demonstrate good moral character. Material omissions on the bar application can be grounds for denial.
- Educational Requirements: Graduation from an ABA-accredited or California-accredited law school (or other qualifying path).
- Bar Examination: Passage of the California Bar Exam.
- MPRE: Passage of the Multistate Professional Responsibility Examination.
- Duty to Disclose: Applicants must disclose all material information, including criminal history and academic misconduct. Failure to disclose is often worse than the underlying conduct (MR 8.1).
Unauthorized Practice of Law
- Definition: Practicing law without a license in the jurisdiction. Includes giving legal advice, drafting legal documents, and appearing in court.
- Multijurisdictional Practice (MR 5.5): A lawyer admitted in one state may not establish an office or hold out as practicing in another state unless an exception applies (temporary practice reasonably related to home-state practice, pro hac vice, arbitration/mediation, or association with local counsel).
- California B&P 6125-6127: Practicing law in California without bar membership is a misdemeanor. California recognizes limited exceptions for in-house counsel registered with the State Bar and certain federal practice.
- Assisting UPL (MR 5.5(a)): A lawyer must not assist another in the unauthorized practice of law.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Multijurisdictional practice | MR 5.5 permits temporary practice under four safe harbors | CA RPC 5.5 largely tracks MR 5.5; CA also has specific rules for registered in-house counsel and registered foreign legal consultants |
| UPL penalty | Model Rules do not impose criminal penalties directly; enforcement varies by state | B&P 6126: UPL is a misdemeanor; B&P 6127: contempt of court for certain acts |
| Duty to report UPL | MR 8.3 requires reporting of lawyer misconduct; MR 5.5(a) prohibits assisting UPL | CA has no general mandatory reporting duty for lawyer misconduct but prohibits assisting UPL (CA RPC 5.5(a)) |
II. Core Duties to Clients
A. Competence (MR 1.1 / CA RPC 1.1)
MR 1.1 — Competence
"A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."
- Legal Knowledge & Skill: The lawyer must have or acquire the knowledge and skill needed for the matter. A lawyer new to a field can become competent through reasonable study or by associating with an experienced lawyer.
- Thoroughness & Preparation: Adequate investigation, research, and analysis are required for any matter undertaken.
- California RPC 1.1: Tracks MR 1.1 closely. A lawyer must not "intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence."
California Distinction
CA RPC 1.1 adds a mental state requirement for discipline: the incompetence must be intentional, reckless, grossly negligent, or repeated. A single negligent error, standing alone, is generally insufficient for discipline (but may support a malpractice claim).
B. Scope of Representation & Allocation of Authority (MR 1.2 / CA RPC 1.2)
MR 1.2 — Scope of Representation
A lawyer shall abide by a client's decisions concerning the objectives of representation and, in consultation with the client, take reasonable action. The client decides:
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Client's decisions | Client decides objectives: whether to settle, what plea to enter, whether to waive jury, whether to testify (criminal) | Same allocation; CA RPC 1.2 largely mirrors MR 1.2 |
| Lawyer's decisions | Lawyer decides means/tactics: procedural and strategic decisions (e.g., which witnesses to call, what motions to file) | Same; lawyer controls tactical decisions in consultation with client |
| Limited scope representation | MR 1.2(c): lawyer may limit scope if reasonable and client gives informed consent | CA RPC 1.2(b): same; must be reasonable under the circumstances |
| Assisting criminal/fraudulent conduct | MR 1.2(d): lawyer shall not counsel or assist criminal or fraudulent conduct, but may discuss legal consequences | CA RPC 1.2.1: lawyer shall not advise or assist violation of law the lawyer knows to be criminal or fraudulent, but may discuss legal consequences of proposed conduct |
Mnemonic: "STOP" — Client Decides
Settle (civil) • Testify (criminal defendant) • Objectives of the case • Plea (criminal) & jury waiver
C. Diligence (MR 1.3 / CA RPC 1.3)
MR 1.3 — Diligence
"A lawyer shall act with reasonable diligence and promptness in representing a client."
- Avoiding Procrastination: A lawyer must pursue a matter despite opposition, obstruction, or personal inconvenience, and must not neglect a client's matter.
- Workload Management: Taking on more work than can be competently handled violates the diligence duty.
- CA RPC 1.3: Substantially identical. A lawyer must not "intentionally, repeatedly, recklessly, or with gross negligence" fail to act with reasonable diligence.
D. Communication (MR 1.4 / CA RPC 1.4)
MR 1.4 — Communication
A lawyer shall: (a) promptly inform the client of decisions requiring informed consent; keep the client reasonably informed about the status of the matter; promptly comply with reasonable requests for information; (b) explain a matter to the extent reasonably necessary for the client to make informed decisions.
- Settlement Offers: A lawyer must promptly communicate all settlement offers and plea bargain offers to the client. The decision to accept or reject belongs to the client.
- Informed Consent: Many rules require "informed consent" (MR 1.0(e)): agreement after the lawyer has communicated adequate information and explanation about the material risks and reasonably available alternatives.
- CA RPC 1.4: Tracks MR 1.4. California adds that a lawyer must keep a client "reasonably informed about significant developments" relating to the representation.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Informed consent | MR 1.0(e): "informed consent" = agreement after adequate communication of information and explanation | CA RPC 1.0.1(e): "informed written consent" = written agreement after full written disclosure. California often requires consent to be in writing where ABA requires only informed consent |
| Settlement offers | Must promptly communicate all offers; client decides | Same; failure to communicate a settlement offer is a frequent disciplinary and malpractice issue |
III. Fees (MR 1.5 / CA RPC 1.5)
MR 1.5 — Fees
A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or unreasonable expenses. Factors include: time and labor, novelty and difficulty, customary fee, amount involved, results obtained, time limitations, nature and length of the relationship, experience and ability of the lawyer.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Reasonableness standard | MR 1.5: fee must not be "unreasonable" | CA RPC 1.5(a): fee must not be "unconscionable" — a higher bar; more difficult for the State Bar to prove a fee violates the rule. Also B&P 6148 requires written fee agreements for fees likely to exceed $1,000 |
| Contingent fees | MR 1.5(c): must be in writing, state method of calculation, expenses to be deducted, percentage. Prohibited in domestic relations (divorce property/alimony) and criminal cases | CA RPC 1.5(b): same general prohibition in criminal and certain family law cases. B&P 6147 requires a written contingent fee agreement with specific disclosures. Attorney's fee cannot exceed reasonable compensation |
| Fee splitting with lawyers | MR 1.5(e): fee division with lawyers not in same firm requires (1) total fee is reasonable, (2) client agrees in writing to the arrangement including the share each lawyer will receive or that each lawyer will assume joint responsibility, (3) client agreement is confirmed in writing | CA RPC 1.5.1: fee division with lawyers not in same firm requires (1) written disclosure and consent of client, (2) total fee is not unconscionable. Does NOT require proportionality or joint responsibility as strictly as ABA |
| Referral fees | MR 7.2(b): a lawyer shall not give anything of value to a person for recommending the lawyer's services (with exceptions for approved referral services and reciprocal referral agreements) | CA B&P 6155: referral fees are permitted to State Bar-certified lawyer referral services. Referral fees to non-certified services or non-lawyers are prohibited |
| Fee sharing with non-lawyers | MR 5.4(a): a lawyer shall not share legal fees with a non-lawyer (exceptions for death benefits, nonprofit legal services, court-awarded fees to organization employing lawyer) | CA RPC 5.4(a): tracks MR 5.4(a) closely; same prohibition with similar exceptions |
| Written fee agreements | No general requirement for written fee agreements; writing required only for contingent fees | B&P 6148: written fee agreement required when total fees will foreseeably exceed $1,000, with specified contents. Failure to comply renders the agreement voidable at the client's option |
California Distinction — B&P 6148 Written Fee Agreements
California requires a written fee agreement whenever the total fee is expected to exceed $1,000 (exceptions: corporate clients, repeat clients with a prior written agreement, emergency/special circumstances). The agreement must state: (1) the basis for compensation, (2) the nature of the legal services, (3) the lawyer's and client's responsibilities. Noncompliance makes the agreement voidable by the client, and the attorney bears the burden of proving the fee is reasonable.
Exam Tip — "Unconscionable" vs. "Unreasonable"
Always note this difference. ABA uses "unreasonable" (easier to prove violation). California uses "unconscionable" (harder to prove). However, on the exam, most fact patterns involving excessive fees will likely meet either standard. Still, state the distinction to earn points.
IV. Confidentiality (MR 1.6 / CA B&P 6068(e) / CA RPC 1.6)
MR 1.6 — Confidentiality of Information
"A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by paragraph (b)."
Critical Distinction: Ethical Duty of Confidentiality vs. Attorney-Client Privilege
These are NOT the same thing. The CA Bar frequently tests the distinction. You must address both separately.
- Ethical Duty of Confidentiality (MR 1.6 / CA RPC 1.6 / B&P 6068(e)): Broader. Covers all information relating to the representation, regardless of source. Applies at all times, not just in proceedings. Cannot be waived by someone other than the client.
- Attorney-Client Privilege (Evidence Code 950-962): Narrower. Applies only to confidential communications between attorney and client (or their agents) made for the purpose of seeking/giving legal advice. An evidentiary rule that applies in proceedings. Can be waived.
Scope of Confidentiality
- Broadly defined: "Information relating to the representation" includes everything learned during or relating to the representation, from any source — not just what the client tells you.
- Duration: Survives the termination of the attorney-client relationship and even the death of the client.
- Implied Authorization: A lawyer may disclose information impliedly authorized to carry out the representation (e.g., telling co-counsel information needed to work on the case).
Exceptions to Confidentiality
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Prevent death or substantial bodily harm | MR 1.6(b)(1): lawyer MAY reveal to prevent reasonably certain death or substantial bodily harm (no requirement that client be the actor) | CA RPC 1.6(b): lawyer MAY reveal to prevent reasonably certain death or substantial bodily harm. (Pre-2018 CA law was much more restrictive; the new rules align more closely with ABA but still have nuances) |
| Prevent client crime/fraud causing financial harm | MR 1.6(b)(2)-(3): lawyer MAY reveal to prevent client from committing a crime or fraud reasonably certain to result in substantial financial injury, if the client has used the lawyer's services. Also may reveal to prevent, mitigate, or rectify such harm | CA RPC 1.6(b): California does NOT have a comparable exception for financial crimes/fraud. This is a major difference. California's confidentiality protection is broader when it comes to financial harm |
| Self-defense / fee dispute | MR 1.6(b)(5): lawyer MAY reveal to establish a claim or defense in a controversy between the lawyer and client, or to respond to allegations in any proceeding concerning the lawyer's representation | CA RPC 1.6(b): similar self-defense exception; lawyer may reveal confidential information to the extent reasonably necessary in a dispute with the client or to defend against a criminal charge or disciplinary charge |
| Compliance with court order or other law | MR 1.6(b)(6): lawyer MAY reveal to comply with other law or court order | CA RPC 1.6(b): lawyer MAY reveal to comply with a court order or as required by law. Also, B&P 6068(e)(1) requires a lawyer to maintain client secrets "at every peril to himself or herself" |
| Securing legal ethics advice | MR 1.6(b)(4): lawyer MAY reveal to secure legal advice about compliance with the Rules | CA RPC 1.6(b): similar provision allowing disclosure to secure ethics advice |
| Prevent acts likely to result in death or bodily harm (mandatory?) | MR: disclosure is permissive ("may"), not mandatory | CA: also permissive under the rules, but note that B&P 6068(e) language ("at every peril to himself or herself") has historically been interpreted as imposing an extremely strong duty of confidentiality. Tension exists. |
Key California Distinction — No Financial Harm Exception
Under the ABA Model Rules, a lawyer may reveal confidential information to prevent, mitigate, or rectify substantial financial injury caused by the client's crime or fraud in which the client used the lawyer's services. California has NO comparable exception. In California, a lawyer generally cannot reveal client confidences to prevent financial harm. This is one of the most heavily tested differences on the CA Bar.
Mnemonic: ABA Exceptions — "DCCSLO"
Death or substantial bodily harm • Client crime/fraud (financial, if services used) • Claims/defense (self-defense) • Securing ethics advice • Law or court order compliance • Organizational conflict detection (MR 1.13)
V. Conflicts of Interest
A. Current Client Conflicts (MR 1.7 / CA RPC 1.7)
MR 1.7 — Conflict of Interest: Current Clients
A lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict exists if: (a) the representation of one client will be directly adverse to another client; OR (b) there is a significant risk that the representation will be materially limited by the lawyer's responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer.
When Is a Conflict Consentable?
A conflict may be waived with informed consent, confirmed in writing (ABA) or informed written consent (California), only if ALL four conditions are met:
- The lawyer reasonably believes they can provide competent and diligent representation to each affected client
- The representation is not prohibited by law
- The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding
- Each affected client gives informed consent, confirmed in writing (ABA: confirmed in writing; CA: informed written consent)
Non-Consentable Conflicts
Some conflicts cannot be waived even with client consent:
- Representation is prohibited by law
- Suing one current client on behalf of another in the same litigation
- Lawyer cannot reasonably believe competent and diligent representation is possible
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Consent requirement | MR 1.7(b)(4): informed consent, confirmed in writing (writing can come after oral consent) | CA RPC 1.7(b)(4): informed written consent — the consent itself must be in writing, not merely confirmed in writing. California is stricter |
| Direct adversity | Suing a current client in an unrelated matter creates a conflict even if the matters are unrelated ("thrust of the sword") | Same analysis; California follows the same principle |
| Positional/issue conflicts | Arguing opposite legal positions in different courts may create a material limitation conflict if there is a significant risk of adverse effect | Same analysis; generally, positional conflicts in different tribunals are permissible absent a significant risk |
B. Former Client Conflicts (MR 1.9 / CA RPC 1.9)
MR 1.9 — Duties to Former Clients
A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
- Substantial Relationship Test: Matters are "substantially related" if there is a substantial risk that confidential information obtained in the prior representation would materially advance the new client's position. Courts look at whether the lawyer could have obtained confidential information in the prior matter that is relevant to the current matter.
- Switching Sides: A lawyer cannot switch sides in the same matter (e.g., formerly represented husband in divorce, now representing wife). This is always a conflict.
- Information Use: Even without a formal conflict, MR 1.9(c) prohibits a lawyer from using information relating to the former representation to the disadvantage of the former client (unless the Rules permit disclosure) or revealing such information.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Substantial relationship test | MR 1.9: "same or substantially related matter" + material adversity | CA RPC 1.9: same test. California courts apply the substantial relationship test from Flatt v. Superior Court (1994): if the matters are substantially related, a presumption of shared confidences arises that is conclusive |
| Consent form | Informed consent, confirmed in writing | Informed written consent |
| Disqualification remedy | Disqualification is a judicial remedy, not automatic; court has discretion | California courts have been more willing to disqualify; the substantial relationship test creates a conclusive (irrebuttable) presumption that the attorney received confidences |
C. Prospective Client Conflicts (MR 1.18 / CA RPC 1.18)
MR 1.18 — Duties to Prospective Clients
A person who consults with a lawyer about the possibility of forming a client-lawyer relationship is a prospective client. Even if no relationship is formed, the lawyer (a) may not use or reveal information learned in the consultation (except as MR 1.9 would permit) and (b) shall not represent a client with interests materially adverse to those of the prospective client in the same or a substantially related matter if the lawyer received information that could be significantly harmful to that person.
- Screening Exception (ABA): Under MR 1.18(d), if a lawyer who received significantly harmful information is timely screened and receives no fee from the matter, the firm need not be disqualified.
- CA RPC 1.18: Tracks MR 1.18 closely. California allows screening to avoid imputation when a lawyer received significantly harmful information from a prospective client.
- Limiting Initial Consultations: A lawyer can limit the information received in an initial consultation to prevent future conflicts. Both the lawyer and the prospective client can agree to limit the scope of what is discussed.
D. Imputed Conflicts (MR 1.10 / CA RPC 1.10)
MR 1.10 — Imputation of Conflicts
While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by MR 1.7 or 1.9, unless the conflict is based on a personal interest of the disqualified lawyer and does not present a significant risk to the other clients.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| General rule | MR 1.10(a): conflicts are imputed to the entire firm (with exceptions) | CA RPC 1.10(a): same general imputation rule |
| Screening for lateral hires | MR 1.10(a)(2): if a conflict arises because a lawyer joined the firm with a former-client conflict, the firm may avoid disqualification by (1) timely screening the disqualified lawyer, (2) giving written notice to the former client, and (3) ensuring the screened lawyer receives no fee from the matter | CA RPC 1.10(a)(2): California allows screening for lateral hires, similar to ABA. Written notice to the affected client is required. This was a significant change from pre-2018 California law, which did not permit screening |
| Government lawyers | MR 1.11: special screening rules for former government lawyers; screening is available to avoid imputation | CA RPC 1.11: tracks MR 1.11 closely |
| Personal interest exception | MR 1.10(a)(1): no imputation if the conflict is based solely on a personal interest of the prohibited lawyer and does not present a significant risk | CA RPC 1.10(a)(1): same personal interest exception |
| Departed lawyer | MR 1.10(b): when a lawyer leaves a firm, the firm may continue representation unless the matter is the same or substantially related and a remaining lawyer has material confidential information | CA RPC 1.10(b): same rule for departed lawyers |
Exam Tip — Conflict Analysis Framework
For every conflict question, follow these steps in order: (1) Identify the type of conflict (current, former, prospective, imputed). (2) State the applicable rule. (3) Analyze whether the conflict exists under the facts. (4) Determine if it is consentable. (5) If so, analyze whether proper consent was obtained. (6) If imputation applies, determine if screening is available. (7) Address both ABA and California rules.
E. Special Conflict Rules (MR 1.8 / CA RPC 1.8)
Business Transactions with Clients (MR 1.8(a) / CA RPC 1.8.1)
- MR 1.8(a) Requirements: A lawyer may enter a business transaction with a client or acquire an ownership, possessory, security, or other pecuniary interest adverse to the client only if: (1) the terms are fair and reasonable and fully disclosed in writing in a manner understandable to the client; (2) the client is advised in writing of the desirability of seeking independent counsel and is given a reasonable opportunity to do so; AND (3) the client gives informed consent, in a writing signed by the client, to the essential terms of the transaction and the lawyer's role.
- CA RPC 1.8.1: Substantially similar to MR 1.8(a). Requires informed written consent.
Other Special Conflicts Under MR 1.8
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Literary/media rights | MR 1.8(d): a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based on the representation prior to the conclusion of the representation | CA RPC 1.8.6: same prohibition during representation. After representation concludes, the restriction lifts |
| Gifts from clients | MR 1.8(c): a lawyer shall not solicit a substantial gift from a client, or prepare an instrument giving the lawyer or a related person a substantial gift, unless the client is related to the donee | CA RPC 1.8.3: tracks MR 1.8(c). A lawyer may not prepare an instrument giving the lawyer a gift unless the client is related |
| Financial assistance to clients | MR 1.8(e): a lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except: (1) lawyer may advance court costs and litigation expenses (repayment may be contingent on outcome); (2) lawyer may pay court costs and expenses for an indigent client | CA RPC 1.8.5: California is more permissive. A lawyer may lend or guarantee litigation costs to a client. In addition, in non-contingency cases a lawyer may pay costs outright. CA also permits loans for basic living expenses when no other source is available |
| Aggregate settlements | MR 1.8(g): a lawyer representing two or more clients shall not make an aggregate settlement or enter an aggregated plea unless each client gives informed consent, in a writing signed by the client, after disclosure of all claims and the participation of each person in the settlement | CA RPC 1.8.7: same requirement. Each client must be informed of every other party's share and must consent in writing |
| Limiting malpractice liability | MR 1.8(h): a lawyer shall not make an agreement prospectively limiting liability for malpractice unless the client is independently represented. A lawyer may settle a claim with a former client if advised in writing to seek independent counsel | CA RPC 1.8.9: same general prohibition. Cannot prospectively limit malpractice liability unless client is independently represented |
| Related lawyers (family conflicts) | MR 1.8(i): a lawyer related to another lawyer as parent, child, sibling, or spouse shall not represent a client in a matter where the other lawyer represents the opposing party unless each client gives informed consent | CA RPC 1.8.10: same restriction on related lawyers representing adverse parties. Requires informed written consent |
| Sexual relations with clients | MR 1.8(j): a lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the client-lawyer relationship commenced | CA RPC 1.8.10 (addressing relationships generally); also CA B&P 6106.9: prohibits sexual relations with a client involving coercion, intimidation, or undue influence. CA applies a broader standard that can include any sexual relationship that exploits the attorney-client relationship |
Mnemonic: Special Conflicts — "BALL GAFS"
Business transactions with client • Aggregate settlements • Literary/media rights • Limiting malpractice liability • Gifts from clients • Adversary in same family • Financial assistance to client • Sexual relations with client
VI. Duties to the Tribunal
A. Candor Toward the Tribunal (MR 3.3 / CA RPC 3.3)
MR 3.3 — Candor Toward the Tribunal
A lawyer shall not knowingly: (a)(1) make a false statement of fact or law to a tribunal or fail to correct a false statement previously made; (a)(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to be directly adverse to the client's position and not disclosed by opposing counsel; (a)(3) offer evidence the lawyer knows to be false.
False Evidence & The Perjury Problem
- Lawyer knows client intends to testify falsely (criminal case): Under MR 3.3, the lawyer must first try to dissuade the client. If that fails, the lawyer must take reasonable remedial measures, including (if necessary) disclosure to the tribunal. The duty of candor overrides the duty of confidentiality under the ABA approach.
- Narrative approach: Some jurisdictions (but NOT the ABA) allow the lawyer to let the criminal defendant testify in narrative form without asking specific questions and without arguing the false testimony in closing. The ABA does not endorse this approach.
- Civil cases: If a lawyer knows a witness (including the client) will offer false testimony, the lawyer must refuse to call the witness or, if the falsity becomes apparent during testimony, take remedial measures including disclosure to the court.
- Duration: MR 3.3(c): the duties continue to the conclusion of the proceeding.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Duty to disclose adverse authority | MR 3.3(a)(2): must disclose directly adverse controlling authority not disclosed by opposing counsel | CA RPC 3.3(a)(2): same duty to disclose adverse authority in the controlling jurisdiction |
| False evidence — remedial measures | MR 3.3(a)(3) & (b): lawyer must take remedial measures including, if necessary, disclosure to the tribunal. Candor trumps confidentiality | CA RPC 3.3(b): if client insists on presenting false testimony in a criminal case and remedial measures fail, the lawyer "may not prevent the client from testifying." California adopts a more permissive approach: the lawyer may allow the defendant to testify but must not assist the false testimony. CA allows the narrative approach in some circumstances |
| Ex parte proceedings | MR 3.3(d): in an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer that will enable the tribunal to make an informed decision, whether or not the facts are adverse | CA RPC 3.3(d): same duty in ex parte proceedings to present all material facts |
| Candor vs. confidentiality priority | MR 3.3 Comment [10]: the duty of candor under Rule 3.3 overrides MR 1.6 confidentiality | CA approach is more protective of confidentiality in criminal cases. CA RPC 3.3(b) tries to balance both duties rather than giving categorical priority to candor. In civil cases, candor generally prevails |
California Distinction — Criminal Defendant Testimony
In California, a criminal defendant has a constitutional right to testify. If the client insists on testifying falsely despite the lawyer's efforts to dissuade, the lawyer: (1) must not withdraw if it would prejudice the client; (2) may not prevent the client from taking the stand; (3) should allow the defendant to testify in narrative form (the lawyer asks no direct questions that would elicit false testimony); (4) must not argue the false testimony in closing. Under the ABA, by contrast, the lawyer must ultimately disclose to the tribunal if other remedial measures fail.
B. Other Tribunal Duties
Fairness to Opposing Party & Counsel (MR 3.4 / CA RPC 3.4)
- Shall not unlawfully obstruct access to evidence or alter/destroy/conceal documents or evidence
- Shall not falsify evidence or assist a witness to testify falsely
- Shall not knowingly disobey an obligation under the rules of a tribunal (except for an open refusal based on an assertion that the rule is invalid)
- Shall not make frivolous discovery requests or fail to make reasonably diligent efforts to comply with proper discovery requests
- Shall not, in trial, allude to matters not supported by evidence or assert personal knowledge of facts at issue
Advocate-Witness Rule (MR 3.7 / CA RPC 3.7)
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| General rule | MR 3.7(a): a lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness, except: (1) uncontested issue; (2) nature and value of legal services; (3) substantial hardship to the client if disqualified | CA RPC 3.7: tracks MR 3.7 closely with the same three exceptions |
| Imputation | MR 3.7(b): the rule does NOT apply to other lawyers in the firm; another lawyer in the firm may act as trial advocate even if one lawyer is a witness | CA RPC 3.7(b): same — other lawyers in the firm are not disqualified |
VII. Duties to Third Persons
A. Truthfulness in Statements to Others (MR 4.1 / CA RPC 4.1)
MR 4.1 — Truthfulness in Statements to Others
In the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by MR 1.6.
- Puffing vs. False Statements: Statements of opinion, estimates of price or value, and statements about a party's intentions during negotiation are generally not considered "statements of material fact" under the Rule. However, knowingly making a false statement about a material fact (e.g., "my client has no prior claims") violates the rule.
- CA RPC 4.1: California's rule tracks the ABA approach. Note that under (b), the conflict between disclosure and confidentiality is resolved in favor of confidentiality — the lawyer need not disclose if it would violate the duty of confidentiality.
B. No-Contact Rule (MR 4.2 / CA RPC 4.2)
MR 4.2 — Communication with Person Represented by Counsel
"In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order."
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Scope | Applies to communications about the "subject of the representation" | CA RPC 4.2(a): same scope. The rule applies to communication about the "subject of the representation" |
| Organizations | MR 4.2 Comment [7]: for organizations, the rule bars contact with current officers, directors, managing agents, and persons whose acts/omissions may be imputed to the organization or whose statements constitute admissions | CA RPC 4.2(b): similar; applies to current employees/agents who have authority to bind the organization, whose acts may be imputed, or who are involved in the subject matter. Former employees are generally not covered |
| Government entities | MR 4.2 Comment [5]: "authorized by law" includes constitutionally protected communications (e.g., right to petition government) | Same; communications with government officials in their official capacity may be authorized by law |
| Self-represented parties | If a party fires their lawyer, the no-contact rule no longer applies (but see MR 4.3 re: unrepresented persons) | Same in California |
| Parties may contact each other | The rule applies to lawyers and those acting on their behalf; parties themselves may communicate directly with each other | Same; but a lawyer may not use the client to circumvent the no-contact rule |
Common Exam Trap
The no-contact rule applies even if the represented person initiates the communication. The lawyer must refrain from discussing the subject matter and direct the person to speak through their attorney. The rule also applies to investigators and agents acting at the lawyer's direction.
C. Dealing with Unrepresented Persons (MR 4.3 / CA RPC 4.3)
- A lawyer shall not state or imply that they are disinterested when dealing with an unrepresented person.
- If the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role, the lawyer must make reasonable efforts to correct the misunderstanding.
- The lawyer shall not give legal advice to an unrepresented person other than the advice to secure counsel, if the lawyer knows or reasonably should know that the person's interests are likely to conflict with the client's interests.
VIII. Special Responsibilities of Prosecutors (MR 3.8 / CA RPC 3.8)
MR 3.8 — Special Responsibilities of a Prosecutor
A prosecutor has heightened duties as a "minister of justice" whose obligation is to seek justice, not merely to convict.
- Probable Cause: Shall not prosecute a charge the prosecutor knows is not supported by probable cause (MR 3.8(a)).
- Right to Counsel: Shall make reasonable efforts to ensure the accused has been advised of the right to counsel and the procedure for obtaining counsel (MR 3.8(b)).
- No Waiver of Rights from Unrepresented Accused: Shall not seek to obtain from an unrepresented accused a waiver of important pretrial rights (MR 3.8(c)).
- Brady Obligations: Must make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate guilt or mitigate the offense (MR 3.8(d)). This is broader than the constitutional Brady obligation.
- Subpoenas of Lawyers: Shall exercise reasonable care to prevent investigators and others from making extrajudicial statements that heighten public condemnation of the accused (MR 3.8(f)).
- Post-Conviction: MR 3.8(g)-(h): when a prosecutor knows of new, credible, and material evidence creating a reasonable likelihood of wrongful conviction, the prosecutor must promptly disclose to the defense and investigate. If the conviction was in the prosecutor's jurisdiction, the prosecutor must seek to remedy the conviction.
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Disclosure of exculpatory evidence | MR 3.8(d): must disclose all evidence tending to negate guilt or mitigate. Broader than Brady (which applies only to material evidence) | CA RPC 3.8(d): same broad obligation to disclose evidence tending to negate guilt or mitigate the offense |
| Post-conviction duties | MR 3.8(g)-(h): affirmative post-conviction duties when new evidence of innocence arises | CA RPC 3.8(g)-(h): California adopted parallel provisions requiring investigation and disclosure when new evidence of wrongful conviction emerges |
| Extrajudicial statements | MR 3.8(f): heightened duty of care in public statements; must protect the defendant's right to a fair trial | CA RPC 3.8(f): same heightened duty re: extrajudicial statements |
IX. Advertising & Solicitation
A. Advertising (MR 7.1-7.2 / CA RPC 7.1-7.2)
MR 7.1 — Communications Concerning a Lawyer's Services
"A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
- Advertising is protected speech: Attorney advertising is commercial speech protected by the First Amendment (Bates v. State Bar of Arizona). Truthful, non-misleading advertising cannot be categorically banned.
- Permissible advertising: Lawyers may advertise in print, online, television, radio, and social media, provided the ads are truthful and not misleading.
- Specialist designations: A lawyer generally may not claim to be a "specialist" or "certified specialist" unless certified by an approved organization (MR 7.2). California allows "certified specialist" only if the lawyer is certified by the California Board of Legal Specialization or an ABA-accredited organization.
B. Solicitation (MR 7.3 / CA RPC 7.3)
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Live solicitation | MR 7.3(a): a lawyer shall not solicit professional employment by live person-to-person contact (in-person, telephone, or real-time electronic) when a significant motive is pecuniary gain, unless the person contacted is (1) a lawyer, (2) a person who has a family, close personal, or prior business/professional relationship with the lawyer, or (3) a person with routine need for the type of services (e.g., regular business clients) | CA RPC 7.3: substantially similar. California also prohibits live solicitation motivated by pecuniary gain with the same exceptions. CA B&P 6152 additionally makes "runner and capper" activity (using agents to solicit accident victims) a crime |
| Written solicitation | MR 7.3(c): written, recorded, or electronic solicitations must include "Advertising Material" on the outside of the envelope and at the beginning and end of the communication | CA RPC 7.3(c): targeted written communications must be labeled "ADVERTISEMENT" or "NEWSLETTER" |
| Disaster victims | MR 7.3(b)(1): a lawyer shall not contact a prospective client by any means if the person has made known a desire not to be solicited or if the solicitation involves coercion, duress, or harassment | CA B&P 6151-6152: additional protections against solicitation of accident victims. Contracting for legal services within 15 days of an accident may be voidable |
| Referral services | MR 7.2(b): permitted referral arrangements with approved lawyer referral services | CA B&P 6155: only State Bar-certified lawyer referral services may charge fees for referrals |
Exam Tip — First Amendment Overlay
Remember: truthful advertising is protected commercial speech. In-person solicitation for pecuniary gain is the most heavily regulated because of the potential for coercion and overreaching (Ohralik v. Ohio State Bar). Written solicitation receives intermediate protection. Political or ideological solicitation (e.g., NAACP v. Button) receives full First Amendment protection and cannot be restricted.
X. Duty to Report Misconduct (MR 8.3 / CA Self-Reporting)
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Reporting other lawyers | MR 8.3(a): a lawyer who knows that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer's honesty, trustworthiness, or fitness as a lawyer shall inform the appropriate professional authority. This is mandatory | California has NO general mandatory duty to report another lawyer's misconduct. This is a major difference. A California lawyer may report but is not required to do so |
| Reporting judges | MR 8.3(b): same mandatory duty to report judicial misconduct raising a substantial question of fitness | No mandatory reporting duty for judicial misconduct either |
| Self-reporting | No general self-reporting requirement under ABA Model Rules | B&P 6068(o): California requires a lawyer to report their own felony indictment/conviction and any discipline imposed in another jurisdiction to the State Bar within 30 days. B&P 6068(i): requires reporting of sanctions of $1,000 or more |
| Confidentiality exception | MR 8.3(c): reporting duty does not require disclosure of information protected by MR 1.6 (confidentiality) or information gained through an approved lawyers assistance program | N/A (no mandatory reporting duty) |
Key California Distinction — No Mandatory Reporting of Others
Under the ABA Model Rules, lawyers must report serious misconduct by other lawyers. California imposes no such duty. However, California does require self-reporting of one's own criminal charges, convictions, discipline in other jurisdictions, and certain sanctions. Always discuss both approaches on the exam.
XI. Supervisory & Subordinate Responsibilities (MR 5.1-5.3 / CA RPC 5.1-5.3)
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Partners/managers | MR 5.1(a): partners and lawyers with comparable managerial authority shall make reasonable efforts to ensure the firm has measures giving reasonable assurance that all lawyers conform to the Rules | CA RPC 5.1(a): same duty for partners and managers |
| Direct supervision | MR 5.1(b): a lawyer with direct supervisory authority over another lawyer shall make reasonable efforts to ensure the other lawyer conforms to the Rules | CA RPC 5.1(b): same supervisory responsibility |
| Responsibility for another's violation | MR 5.1(c): a lawyer is responsible for another lawyer's conduct if: (1) the lawyer orders or ratifies it, or (2) the lawyer is a partner/manager/supervisor and knows of the conduct at a time when consequences can be avoided or mitigated but fails to take reasonable remedial action | CA RPC 5.1(c): substantially similar; lawyer is responsible if they order, ratify, or knowingly fail to act to prevent or mitigate |
| Subordinate lawyer | MR 5.2: a subordinate lawyer is bound by the Rules even if acting under a supervisory lawyer's direction. However, a subordinate does not violate the Rules if acting in accordance with a supervisor's reasonable resolution of an arguable question of professional duty | CA RPC 5.2: same safe harbor for subordinate lawyers following a supervisor's reasonable resolution of an arguable question |
| Non-lawyer assistants | MR 5.3: lawyers with managerial or direct supervisory authority over non-lawyers (paralegals, secretaries, investigators) must make reasonable efforts to ensure their conduct is compatible with the lawyer's professional obligations | CA RPC 5.3: same duty to supervise non-lawyer assistants. The lawyer is responsible if they order or ratify misconduct, or fail to take remedial action |
XII. Trust Accounts & Client Property (MR 1.15 / CA RPC 1.15)
MR 1.15 — Safekeeping Property
A lawyer shall hold property of clients or third persons that is in the lawyer's possession in connection with a representation separate from the lawyer's own property. Funds must be kept in a separate trust account (client trust account / IOLTA). Complete records must be kept for five years after the representation.
- Separate Account: Client funds must be deposited in a clearly identified client trust account, separate from the lawyer's operating/personal accounts.
- No Commingling: A lawyer must not commingle personal funds with client funds. Only exception: a lawyer may deposit a reasonable amount of personal funds to cover bank service charges.
- Prompt Delivery: Upon receiving funds in which a client or third party has an interest, the lawyer must promptly notify and deliver the funds.
- Disputed Funds: If there is a dispute about funds (e.g., between lawyer's fee and client's share), the undisputed portion must be distributed promptly. The disputed portion must be kept in trust until the dispute is resolved. A lawyer may NOT simply take disputed fees from the trust account.
- IOLTA (Interest on Lawyers' Trust Accounts): Small or short-term client deposits are placed in pooled interest-bearing trust accounts. Interest earned goes to fund legal services for the indigent (upheld as constitutional in Brown v. Legal Foundation of Washington).
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Record keeping | MR 1.15(a): must maintain complete records for five years after the representation | CA RPC 1.15: must maintain records for at least five years. California has detailed rules (Rules of State Bar, art. 4) specifying required records and audit requirements |
| IOLTA | Funds too small to generate net interest for the individual client go into IOLTA | B&P 6211-6228: California has detailed IOLTA requirements; lawyers must use IOLTA-approved banks |
| Third-party claims | MR 1.15(d): lawyer must promptly notify third parties with claims to funds | CA RPC 1.15(d): same duty. Additionally, if a third party has a valid lien or claim, the lawyer may have to hold funds in trust pending resolution |
High-Stakes Rule
Trust account violations are among the most severely punished ethical breaches. Commingling, misappropriation, or failure to maintain proper trust account records frequently result in disbarment. Even negligent mishandling can lead to suspension.
XIII. Termination of Representation — Withdrawal (MR 1.16 / CA RPC 1.16)
MR 1.16 — Declining or Terminating Representation
Withdrawal may be mandatory or permissive.
Mandatory Withdrawal
A lawyer must withdraw if:
- The representation will result in violation of the Rules of Professional Conduct or other law
- The lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client
- The lawyer is discharged (a client always has the absolute right to fire a lawyer, subject to court approval in litigation)
Permissive Withdrawal
A lawyer may withdraw if:
- Withdrawal can be accomplished without material adverse effect on the client's interests
- The client persists in a course of action the lawyer reasonably believes is criminal or fraudulent
- The client has used the lawyer's services to perpetrate a crime or fraud
- The client insists on an objective the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
- The client fails substantially to fulfill an obligation to the lawyer (e.g., non-payment of fees) and has been given reasonable warning
- The representation will result in an unreasonable financial burden on the lawyer
- Other good cause for withdrawal exists
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Mandatory withdrawal | MR 1.16(a): must withdraw if representation will violate Rules, lawyer is impaired, or lawyer is discharged | CA RPC 1.16(a): same three grounds for mandatory withdrawal |
| Permissive withdrawal | MR 1.16(b): seven enumerated grounds (listed above) | CA RPC 1.16(b): substantially similar permissive grounds. California also considers whether withdrawal would prejudice the client, particularly in litigation |
| Court approval | MR 1.16(c): when ordered to continue by a tribunal, lawyer must comply even if good cause for withdrawal exists | CA RPC 1.16(c): same; in litigation, withdrawal requires leave of court. California courts may deny withdrawal if it would prejudice the client or delay proceedings |
| Duties upon withdrawal | MR 1.16(d): upon termination, lawyer must take steps reasonably practicable to protect client's interests, including giving reasonable notice, allowing time for new counsel, surrendering papers and property, refunding unearned fees | CA RPC 1.16(d): same duties. Additionally, California attorneys must promptly release the client's file upon request. A lawyer may NOT hold the file hostage for unpaid fees (retaining lien generally does not apply to the client's own file in California) |
California Distinction — Client File
Upon termination, a California lawyer must promptly release the client's file. While some jurisdictions recognize a retaining lien over the client's papers for unpaid fees, California's approach strongly disfavors this. The lawyer's duty to the client and to the administration of justice generally requires releasing the file, then pursuing the fee claim separately.
XIV. Attorney-Client Privilege vs. Ethical Duty of Confidentiality
Heavily Tested Distinction
The CA Bar expects you to clearly distinguish these two separate doctrines. Many examinees lose points by conflating them. Address both in your answer when privilege or confidentiality is at issue.
| Issue | Attorney-Client Privilege (Evidentiary) | Ethical Duty of Confidentiality (Professional Responsibility) |
|---|---|---|
| Source | Evidence Code 950-962 (CA); common law (federal); state statutes | MR 1.6; CA RPC 1.6; CA B&P 6068(e) |
| Scope | Narrow: Only confidential communications between attorney and client (or their agents) made for the purpose of seeking or rendering legal advice | Broad: All information relating to the representation, regardless of source (includes facts learned from third parties, publicly available information the client wants kept secret, observations, etc.) |
| Who may invoke | Privilege belongs to the client. Only the client (or holder) may waive it. The lawyer has a duty to assert it on the client's behalf | Ethical duty belongs to the lawyer. The lawyer may not disclose unless an exception applies. The client may consent to disclosure |
| When it applies | In judicial and other proceedings where testimony or documents are sought. It is a rule of evidence | Applies at all times — in and out of proceedings, in casual conversation, at cocktail parties, etc. |
| Duration | Survives termination of the relationship and death of the client (can be waived by executor/personal representative) | Survives termination and death of the client. No expiration |
| Exceptions | Crime-fraud exception (communications made to further a crime or fraud are not privileged); joint-client exception; breach of duty exception; attorney-client dispute | Varies by jurisdiction. ABA: death/bodily harm, financial crime/fraud (if services used), self-defense, ethics advice, law/court order. CA: death/bodily harm, self-defense, ethics advice, court order (NO financial crime/fraud exception) |
| Waiver | Can be waived by voluntary disclosure of the privileged communication; inadvertent disclosure may result in waiver (subject to claw-back provisions) | Cannot be "waived" in the traditional sense. Exceptions permit disclosure; otherwise the duty is absolute |
Exam Approach for Privilege/Confidentiality Questions
When a question involves a lawyer revealing or being asked to reveal client information, always address: (1) Is the information protected by the attorney-client privilege? Analyze the elements (confidential communication, between attorney and client, for legal advice). (2) Is the information protected by the ethical duty of confidentiality? Almost always yes, because the scope is broader. (3) Do any exceptions to either doctrine apply? Analyze exceptions under both ABA and California rules.
XV. Attorney Malpractice
A. Negligence-Based Malpractice
- Duty: An attorney owes a duty of care to the client (and in limited circumstances to intended third-party beneficiaries, e.g., beneficiaries of a will the attorney negligently drafted).
- Breach: The attorney failed to exercise the competence and diligence normally exercised by attorneys in similar circumstances. Expert testimony is generally required to establish the standard of care.
- Causation: The client must prove "but for" causation. In litigation malpractice, this means proving the "case within a case" — the client must show they would have prevailed in the underlying action but for the attorney's negligence.
- Damages: Actual damages (not just nominal). The client must prove measurable financial harm resulting from the breach.
B. Breach of Fiduciary Duty
- An attorney is a fiduciary of the client. Breach of fiduciary duty is a separate cause of action from negligence-based malpractice.
- Encompasses duty of loyalty, duty of confidentiality, duty to avoid conflicts of interest, duty to account for client property.
- The "case within a case" requirement may not apply to fiduciary duty claims (e.g., misappropriation of funds does not require proving the underlying litigation would have succeeded).
- Some fiduciary breaches may give rise to fee forfeiture even without proof of actual damages.
C. Malpractice vs. Disciplinary Violations
| Issue | Malpractice (Civil Liability) | Discipline (State Bar Proceedings) |
|---|---|---|
| Standard | Negligence / breach of fiduciary duty (preponderance of evidence) | Violation of Rules of Professional Conduct or B&P Code (clear and convincing evidence in CA) |
| Who brings action | Client (or third-party beneficiary) brings civil suit | State Bar initiates disciplinary proceedings |
| Remedy | Money damages (compensatory, sometimes punitive) | Discipline: private reproval, public reproval, suspension, disbarment |
| Rule violation as evidence | A violation of the Rules is not per se malpractice but may be evidence of the standard of care | A Rule violation may result in discipline regardless of whether the client suffered damages |
| Damages required | Yes — must prove actual damages | No — discipline may be imposed even if no client was harmed |
Exam Tip — "Triple Threat" Analysis
When a PR essay involves attorney misconduct causing harm, consider three separate consequences: (1) Discipline by the State Bar (suspension, disbarment); (2) Civil malpractice liability (negligence, breach of fiduciary duty); (3) Disqualification from the representation (judicial remedy). Each has different standards and requirements.
XVI. Common Essay Patterns & Hypotheticals
Pattern 1: The Conflicted Lawyer
Fact Pattern: An attorney represents Client A. A new prospective client, Client B, approaches the attorney with a case that may be adverse to Client A's interests, or involves information learned from Client A's representation.
Issues to Spot:
- Current client conflict (MR 1.7 / CA RPC 1.7) — direct adversity or material limitation
- Former client conflict (MR 1.9 / CA RPC 1.9) if Client A is a former client — substantial relationship test
- Prospective client duties (MR 1.18) if Client B is never retained
- Imputed conflicts (MR 1.10) — does the conflict extend to the whole firm?
- Consentability analysis — can the conflict be waived? Were proper consents obtained?
- Confidentiality — information from one client that relates to the other
- Withdrawal — if the conflict is discovered mid-representation
Pattern 2: The Secret-Keeping Dilemma
Fact Pattern: During representation, a lawyer learns that the client intends to commit a crime, perpetrate a fraud, or that past testimony was false. The lawyer must decide what to reveal and to whom.
Issues to Spot:
- Ethical duty of confidentiality (MR 1.6 / CA RPC 1.6 / B&P 6068(e)) — scope and exceptions
- Attorney-client privilege — distinguish from ethical duty
- ABA vs. CA exceptions (especially: no financial harm exception in CA)
- Duty of candor to tribunal (MR 3.3) if false evidence is involved — candor vs. confidentiality
- Withdrawal (MR 1.16) — may the lawyer withdraw? Must they?
- Crime-fraud exception to privilege
- Noisy withdrawal — the lawyer may withdraw and disaffirm prior work product
Pattern 3: The Fee Dispute
Fact Pattern: A lawyer charges fees that seem excessive, enters a contingency agreement with deficient terms, splits fees improperly, or disputes with a client over the fee.
Issues to Spot:
- Fee reasonableness (MR 1.5 "unreasonable" vs. CA "unconscionable")
- Written fee agreement (B&P 6148 requirement if fee exceeds $1,000)
- Contingent fee requirements (B&P 6147 / MR 1.5(c)): writing, prohibited matters (criminal, domestic)
- Fee splitting (MR 1.5(e) / CA RPC 1.5.1) — with lawyers outside the firm
- Fee sharing with non-lawyers (MR 5.4(a))
- Trust account duties (MR 1.15) — disputed funds must stay in trust
- Withdrawal for non-payment (MR 1.16(b)(5)) — permissive after reasonable warning
- Lien on client file — California generally disfavors withholding the file
Pattern 4: The Lawyer Who Talks Too Much
Fact Pattern: A lawyer communicates with a represented party, gives advice to an unrepresented person, makes improper solicitations, or reveals confidential information in casual conversation or public settings.
Issues to Spot:
- No-contact rule (MR 4.2 / CA RPC 4.2) — communicating with represented persons
- Unrepresented persons (MR 4.3) — duty not to mislead about lawyer's role
- Solicitation (MR 7.3) — live in-person solicitation for pecuniary gain
- Advertising (MR 7.1) — false or misleading communications
- Confidentiality (MR 1.6) — casual disclosure of client information
- Truthfulness (MR 4.1) — false statements to third persons
Pattern 5: The Lawyer in Litigation
Fact Pattern: During litigation, a lawyer faces issues of candor to the tribunal, handling evidence, dealing with perjury, or acting as both advocate and witness.
Issues to Spot:
- Candor to tribunal (MR 3.3) — false statements, adverse authority, false evidence
- Perjury by client or witness — dissuade, remedial measures, disclosure (ABA) vs. narrative approach (CA criminal)
- Fairness to opposing party (MR 3.4) — evidence destruction, discovery abuse
- Advocate-witness rule (MR 3.7) — lawyer likely to be a necessary witness
- Prosecutor duties (MR 3.8) — Brady obligations, probable cause
- Ex parte communications (MR 3.3(d)) — duty to present all material facts
- Frivolous claims (MR 3.1) — duty not to bring meritless actions
XVII. Issue Spotting Checklist
Use this checklist systematically when reading a PR fact pattern
Go through each category and ask whether the facts trigger any issue. Even if the answer is "no violation," noting that you considered the issue demonstrates thoroughness.
- Formation of relationship: Is there an attorney-client relationship? Was the person a prospective client? Unauthorized practice?
- Competence & Diligence: Does the lawyer have the skill for the matter? Is the lawyer being diligent and prompt?
- Communication: Is the lawyer keeping the client informed? Communicating all offers? Obtaining informed consent where needed?
- Fees: Is the fee reasonable/not unconscionable? Written agreement? Contingent fee properly documented? Fee splitting?
- Confidentiality: Has confidential information been disclosed? Does an exception apply? Distinguish privilege from ethical duty
- Conflicts — Current: Direct adversity? Material limitation? Personal interest? Consentable? Proper consent?
- Conflicts — Former: Substantial relationship? Material adversity to former client? Consent obtained?
- Conflicts — Imputed: Does the conflict extend to the firm? Is screening available?
- Special Conflicts (MR 1.8): Business transaction? Gift? Literary rights? Financial assistance? Aggregate settlement? Limiting liability? Related lawyers? Sexual relationship?
- Duties to Tribunal: Candor? False evidence? Adverse authority? Ex parte proceeding?
- Duties to Third Parties: Truthfulness? No-contact rule? Unrepresented persons?
- Advertising/Solicitation: Misleading communication? Improper live solicitation?
- Supervision: Is a partner/manager failing to supervise? Subordinate lawyer following unreasonable direction?
- Trust Accounts: Commingling? Misappropriation? Failure to distribute? Proper records?
- Withdrawal: Is withdrawal mandatory or permissive? Court approval needed? Duties upon withdrawal?
- Reporting: ABA mandatory reporting? CA self-reporting obligations?
- Malpractice: Negligence? Breach of fiduciary duty? Case within a case? Damages?
- Prosecutor Duties: If a prosecutor is involved — Brady, probable cause, post-conviction duties?
XVIII. Key Distinctions — ABA vs. California Summary
| Issue | ABA Model Rules | California RPC |
|---|---|---|
| Fee standard | "Unreasonable" | "Unconscionable" (higher bar) |
| Written fee agreement | Required only for contingent fees | Required when fees will exceed $1,000 (B&P 6148) |
| Confidentiality exception — financial harm | MAY disclose to prevent/mitigate/rectify substantial financial injury from client crime/fraud using lawyer's services | NO comparable exception for financial harm |
| Confidentiality exception — death/bodily harm | MAY disclose to prevent reasonably certain death or substantial bodily harm | MAY disclose (post-2018 rules align more closely with ABA) |
| Consent to conflicts | Informed consent, confirmed in writing | Informed written consent (consent itself must be written) |
| Mandatory reporting of others | Yes — must report violations raising substantial fitness question | No — no mandatory duty to report others' misconduct |
| Self-reporting | No general requirement | Yes — must self-report felony charges/convictions, discipline in other jurisdictions, certain sanctions (B&P 6068(o)) |
| False testimony in criminal case | Lawyer must take remedial measures including disclosure to tribunal; candor overrides confidentiality | Lawyer may not prevent defendant from testifying; narrative approach permitted; greater protection of client's right to testify |
| Financial assistance to clients | May advance court costs (repayment may be contingent); pay costs for indigent clients | More permissive; may also lend for basic living expenses when no other source available |
| Screening for lateral hires | Permitted under MR 1.10(a)(2) with notice and fee preclusion | Permitted under CA RPC 1.10(a)(2) (significant change from pre-2018 law) |
| Competence mental state | No specific mental state required for discipline | Must be intentional, reckless, grossly negligent, or repeated |
| Client file on withdrawal | Must return papers and property; retaining lien may apply in some jurisdictions | Must promptly release file; retaining lien strongly disfavored |
XIX. Mnemonics & Memory Aids
Mnemonic: "CCC-DFTS" — Core Client Duties
Competence (MR 1.1) • Communication (MR 1.4) • Confidentiality (MR 1.6) • Diligence (MR 1.3) • Fees (MR 1.5) • Trust accounts (MR 1.15) • Scope (MR 1.2)
Mnemonic: "CIFIPI" — Conflict Types
Current client (MR 1.7) • Imputed (MR 1.10) • Former client (MR 1.9) • Interests — special (MR 1.8) • Prospective client (MR 1.18) • Impaired lawyer (personal interest)
Mnemonic: "Can We Consent?" — Conflict Consentability (4 Requirements)
Reasonable belief of competent/diligent representation • Not prohibited by law • Not same-litigation adversity • Informed consent confirmed in writing (ABA) / informed written consent (CA)
Mnemonic: "PRICE" — Key CA Differences from ABA
Perjury/false testimony: narrative approach permitted in CA • Reporting: no duty to report others, but must self-report • Informed written consent (not just confirmed in writing) • Confidentiality: no financial harm exception • Excessive fees: "unconscionable" not "unreasonable"
Mnemonic: "STOP" — Client Controls
Settle • Testify • Objectives • Plea / jury waiver
XX. Exam Tips
1. Always Discuss Both ABA and California Rules
Every PR essay requires dual-track analysis. State the ABA Model Rule, analyze under the facts, then state how California differs and analyze under California's rule. Even if the analysis is the same, explicitly say so.
2. Use Rule Numbers
Citing specific rule numbers (MR 1.7, CA RPC 1.6, B&P 6068(e)) demonstrates mastery and adds precision to your analysis. You do not need to quote the full rule text, but identifying the rule number is valuable.
3. Distinguish Privilege from Confidentiality
Whenever a question involves a lawyer revealing information, address both doctrines separately. Define each, explain the different scope, and analyze exceptions under each. This distinction is one of the most frequently tested topics.
4. Identify All Issues Before Writing
PR fact patterns typically raise 5-8 distinct issues. Use the checklist above to spot them all before you begin writing. Allocate time proportionally to the difficulty and depth of each issue.
5. State the Consequences
For each violation, state the potential consequences: (1) disciplinary action (reproval, suspension, disbarment), (2) civil malpractice liability, (3) disqualification from the representation, (4) criminal liability (where applicable, e.g., trust account misappropriation). This demonstrates comprehensive analysis.
6. Remember the "Reasonable Lawyer" Standard
Many rules turn on what a "reasonable" lawyer would do or believe. Use this as your analytical framework when applying rules to facts. The question is not what the best lawyer would do, but what a reasonably competent lawyer would do.
7. Watch for Multiple-Relationship Fact Patterns
The hardest PR questions involve a lawyer navigating duties to multiple parties simultaneously: current clients, former clients, the court, and third parties. Map out who the lawyer owes duties to and what those duties require. Look for tensions between competing duties (e.g., candor vs. confidentiality).
8. Do Not Forget Imputation
If one lawyer in a firm has a conflict, consider whether it is imputed to the entire firm. Then consider whether screening can cure the imputation. This is an easy point to earn that many examinees miss.