Legal Ethics

Ethical Guidelines for Maintaining a Successful Practice

Timothy J. Halloran, Esq.Jason E. Fellner, Esq.Murphy, Pearson, Bradley & Feeney, P.C.Legal EthicsFour Important PreceptsProperly Screening ClientsServicing ClientsKeeping Sharp in Your Area of Expertise Maintaining Client Files

Properly Screening Clients

The saying is true, the empty vessel makes the greatest sound. - William Shakespeare, Henry V, Act IV, Scene 4, lines 58-59Client InterviewsBackground Investigation (e.g. www.411.org)3) Prior Lawsuits4) Trust Instincts 5) Conflict Check

Cal. Rule of Prof. Conduct Rule 3-300Cal. Rule of Prof. Conduct Rule 3-300 - Avoiding Interests Adverse to a ClientA member shall not enter into a business transaction with a client; or knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client, unless each of the following requirements has been satisfied:(A) The transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner which should reasonably have been understood by the client; and(B) The client is advised in writing that the client may seek the advice of an independent lawyer of the client's choice and is given a reasonable opportunity to seek that advice; and(C) The client thereafter consents in writing to the terms of the transaction or the terms of the acquisition.

Cal. Rule of Prof. Conduct Rule 3-310Cal. Rule of Prof. Conduct Rule 3-310 - Avoiding the Representation of Adverse Interests(B) A member shall not accept or continue representation of a client without providing written disclosure to the client where:(1) The member has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; or(2) The member knows or reasonably should know that:(a) the member previously had a legal, business, financial, professional, or personal relationship with a party or witness in the same matter; and(b) the previous relationship would substantially affect the member's representation; or(3) The member has or had a legal, business, financial, professional, or personal relationship with another person or entity the member knows or reasonably should know would be affected substantially by resolution of the matter; or(4) The member has or had a legal, business, financial, or professional interest in the subject matter of the representation.(C) A member shall not, without the informed written consent of each client:(1) Accept representation of more than one client in a matter in which the interests of the clients potentially conflict; or(2) Accept or continue representation of more than one client in a matter in which the interests of the clients actually conflict; or(3) Represent a client in a matter and at the same time in a separate matter accept as a client a person or entity whose interest in the first matter is adverse to the client in the first matter.(E) A member shall not, without the informed written consent of the client or former client, accept employment adverse to the client or former client where, by reason of the representation of the client or former client, the member has obtained confidential information material to the employment.Servicing Clients

Make service your first priority, not success, and success will follow.CommunicationCommunicationCommunicationCommunicationRule 3-500 CommunicationA member shall keep a client reasonably informed about significant developments relating to the employment or representation, including promptly complying with reasonable requests for information and copies of significant documents when necessary to keep the client so informed.Rule 3-510 Communication of Settlement Offer(A) A member shall promptly communicate to the member's client:(1) All terms and conditions of any offer made to the client in a criminal matter; and(2) All amounts, terms, and conditions of any written offer of settlement made to the client in all other matters.(B) As used in this rule, "client" includes a person who possesses the authority to accept an offer of settlement or plea, or, in a class action, all the named representatives of the class.

Keeping Sharp in Your Practice Area

If I had eight hours to chop down a tree, Id spend six sharpening my ax. - Abraham LincolnLegal SpecializationContinuing Legal EducationDisclosure of Legal Experience to ClientIf Appropriate, Refer Client to Experienced Attorney California Legal SpecialistsRequirements for Legal Specialization Certification:an attorney must :1) have been engaged in the practice of law in the area in which certification is sought for a minimum of 25 percent of the time the attorney has spent in occupational endeavors during the previous five years 2) be an active member of the State Bar of California Workers' Compensation Law applicants also must be in good standing before the Workers' Compensation Appeals Board Immigration and Nationality Law applicants also must meet the definition of "attorney" as set forth in 8 CFR 1.1(f) and shall not be under order of suspension or disbarment by the Board of Immigration Appeals Bankruptcy Law applicants must also be admitted and in good standing before at least one United States District Court within the State of California 3) pass a written exam 4) demonstrate a high level of experience in the specialty field by meeting specific task and experience requirements 5) complete at least 45 hours of continuing education in the specialty field 6) be favorably evaluated by other attorneys and judges familiar with the attorney's work Specializations:Admiralty and Maritime LawAppellate LawBankruptcy LawCriminal LawEstate Planning Trust and Probate LawFamily LawFranchise and Distribution LawImmigration and Nationality LawLegal Malpractice LawTaxation LawWorkers Compensation Law

Continuing Legal EducationTotal hours required every three years: 25 hoursMaximum "self-study" hours: 12.5 hours Members must fulfill at least one-half of their MCLE requirement with activities approved for "participatory" MCLE credit. Special Requirements within the total hours required (may be taken as participatory or self-study): Legal Ethics: 4 hours (required) Detection/Prevention of Substance Abuse: 1 hour (required) Elimination of Bias in the Legal Profession: 1 hour (required)

Disclosure of Legal Experience to ClientCal. Rule of Prof. Conduct Rule 1-400 Advertising and Solicitation(D) A communication or a solicitation (as defined herein) shall not:(1) Contain any untrue statement; or(2) Contain any matter, or present or arrange any matter in a manner or format which is false, deceptive, or which tends to confuse, deceive, or mislead the public; or(3) Omit to state any fact necessary to make the statements made, in the light of circumstances under which they are made, not misleading to the public; or(4) Fail to indicate clearly, expressly, or by context, that it is a communication or solicitation, as the case may be; or(5) Be transmitted in any manner which involves intrusion, coercion, duress, compulsion, intimidation, threats, or vexatious or harassing conduct.(6) State that a member is a "certified specialist" unless the member holds a current certificate as a specialist issued by the Board of Legal Specialization, or any other entity accredited by the State Bar to designate specialists pursuant to standards adopted by the Board of Governors, and states the complete name of the entity which granted certification.

If Appropriate, Refer Client to Another AttorneyRule 3-110 Failing to Act Competently.(A) A member shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.(B) For purposes of this rule, "competence" in any legal service shall mean to apply the 1) diligence, 2) learning and skill, and 3) mental, emotional, and physical ability reasonably necessary for the performance of such service.(C) If a member does not have sufficient learning and skill when the legal service is undertaken, the member may nonetheless perform such services competently by 1) associating with or, where appropriate, professionally consulting another lawyer reasonably believed to be competent, or 2) by acquiring sufficient learning and skill before performance is required.Maintaining Client Files

Paper FilesElectronically Stored InformationClient Papers and PropertyRule 3-700. Termination of EmploymentA member whose employment has terminated shall:(1) Subject to any protective order or non-disclosure agreement, promptly release to the client, at the request of the client, all the client papers and property. "Client papers and property" includes correspondence, pleadings, deposition transcripts, exhibits, physical evidence, expert's reports, and other items reasonably necessary to the client's representation, whether the client has paid for them or not; and(2) Promptly refund any part of a fee paid in advance that has not been earned. This provision is not applicable to a true retainer fee which is paid solely for the purpose of ensuring the availability of the member for the matter.

Electronically Stored InformationTHE STATE BAR OF CALIFORNIASTANDING COMMITTEE ONPROFESSIONAL RESPONSIBILITY AND CONDUCTFORMAL OPINION NO. 2007-174

An attorney is ethically obligated, upon termination of employment, promptly to releaseto a client, at the clients request: (1) an electronic version of e-mail correspondence,because such items come within a category subject to release; (2) an electronic version ofthe pleadings, because such items too come within a category subject to release; (3) anelectronic version of discovery requests and responses, because such items are subject torelease as reasonably necessary to the clients representation; (4) an electronic depositionand exhibit database, because such an item itself contains items that come withincategories subject to release; and (5) an electronic version of transactional documents,because such items are subject to release as reasonably necessary to the clientsrepresentation. The attorneys ethical obligation to release any electronic items, however,does not require the attorney to create such items if they do not exist or to change theapplication (e.g., from Word (.doc) to WordPerfect (.wpd)) if they do exist. Prior torelease, the attorney is ethically obligated to take reasonable steps to strip from each ofthese electronic items any metadata reflecting confidential information belonging to anyother client.

(See Cal. Rule of Prof. Conduct Rule 3-700(D); Bus. & Prof. Code Section 6068(e)(1).)Resources for Additional InformationCalifornia State Bar Website www.calbar.ca.govCalifornia Ethics Hotline 1-800-238-427California Rules of Professional ConductThe Rutter Guide Professional Responsibility QUESTIONS