2. Duties to Current and Former Clients Flashcards
What is a Duty of Competence?
A lawyer must not handle a matter beyond their competence without associating with a lawyer who is competent in that area
What does Competence require?
Competence requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Can a lawyer give competent representation in a field they are inexperienced?
Yes. A lawyer can competently represent in an unfamiliar field by studying or working with an experienced lawyer in that area.
Can Emergencies excuse the ordinary standards of thorough preparation?
Yes. In emergencies where consulting another lawyer is impractical, a lawyer may assist outside their expertise but should limit help to what is necessary under the circumstances.
What is the Duty of Diligence?
A lawyer must diligently and promptly represent a client and must not willfully neglect or abandon a client’s legal matter without a valid reason.
What is Diligence?
Diligence involves zealous advocacy, commitment, and dedication to a case, despite any opposition, obstruction, or inconvenience to the lawyer.
Is a lawyer required to press every advantage that might be realized for a client?
No. A lawyer may take any lawful and ethical measures necessary to vindicate a client’s cause or endeavor, but need not press every advantage.
Lawyer’s workload
A lawyer should manage their workload to ensure adequate handling of each case.
While a single neglectful incident may not breach the Rule, repeated negligence, even in a single client matter, could constitute a violation.
What is the Duty of Communication?
A lawyer must communicate effectively with clients by:
1. promptly informing them of decisions requiring their consent;
2. consulting on objectives;
3. updating them on case status;
4. responding to information requests;
5. advising on legal limitations; and
6. explaining matters for informed decisions.
What is reasonably necessary information?
Reasonably necessary information includes communication from another party and offers of settlement in a civil matter or of plea bargain in a criminal case.
Does a lawyer have to advise a client on the status of a matter even if the client delegates authority to the lawyer?
Yes. The lawyer must advise of the status of the matter.
Emergencies and Other Special Circumstances;
In some instances, a lawyer may be justified in delaying transmission of information when
the client would be likely to react imprudently to the immediate communication, but the lawyer may not do so to serve the lawyer’s own interests or convenience.
What is the scope of the duty of confidentiality?
The duty of confidentiality protects all client information, regardless of its source, and prohibits its disclosure even in judicial proceedings.
A lawyer must keep all client information confidential, especially if requested by the client or if disclosure would harm or embarrass the client. True or False?
True.
What is impliedly authorized concerning sharing confidential information?
A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation.
Who is the client of a corporate organizational’s lawyer?
The organization itself, not its individual members.
Thus, any information received by the lawyer in this capacity is considered received by the organization.
Furthermore, communications from non-management members of the organization must be shared with management.
What is a lawyer’s obligation regarding nondisclosure and nonuse of protected information?
A lawyer is forbidden from disclosing protected information to anyone unless permitted by exceptions.
Can a lawyer use protected information to the client’s disadvantage?
No. A lawyer cannot use protected information to the client’s disadvantage unless the client consents after consultation.
Can a lawyer disclose information to lawyers in the firm and to staff?
Yes. A lawyer has the right to disclose information to lawyers in the firm and to staff working for the firm.
Does a lawyer’s duty of confidentiality persist beyond the termination of the attorney-client relationship?
Yes. The duty of confidentiality persists beyond the termination of the attorney-client relationship.
Lawyers must not disclose or use information from past representations to the detriment of a former client, unless permitted by rules of confidentiality and candor, or when the information is publicly available.
Can a lawyer that represents a new client use protected information from a prior representation that would be helpful to a lawyer in representing the new client?
No. If protected information from a prior representation would be helpful to a lawyer in representing a new client, the lawyer may not represent that new client without first obtaining the consent of the former client to use the protected information.
A lawyer may reveal protected information if:
- necessary to prevent harm or loss due to criminal acts;
- prevent serious injury or death;
- defend against claims in disputes with the client;
- defend against charges from the client’s conduct; or
- respond to allegations about their representation.
Implied Authority to carry out the representation of the client;
A lawyer is impliedly authorized to make disclosures about a client when appropriate in carrying out the representation, except to the extent that the client’s instructions or other special circumstances limit that authority.
Duty to Avoid Conflicts of Interest;
Lawyer’s Responsibility At intake;
The lawyer undertaking the representation of a client has the primary responsibility for recognizing and resolving questions of conflict of interest.
What if a conflict is identified prior to the commencement of representation?
If a conflict is identified prior to the commencement of representation, then the lawyer should decline the representation.
What if a conflict arises after commencement of representation?
If a conflict arises after commencement of representation, the lawyer must withdraw if continuing the representation would result in a violation of the Rules.
Can the court raise the issue of a conflict during a trial?
Yes. During a trial, the court can raise the issue of a conflict if it feels that the conflict has been neglected by the lawyer.
For example, In a criminal case, the court will almost always raise the question of conflict where a single lawyer represents multiple criminal defendants at the same trial.
General Prohibition;
Significant Risk of Materially Adverse Effect;
Under GRPC 1.7(a), a lawyer must not represent a client if there’s a significant risk that the lawyer’s own interests or duties to another client, former client, or third person will materially and adversely affect the representation.
Can a lawyer act as an advocate directly against a person they are representing in another matter?
Generally, No. A lawyer generally may not act as an advocate directly against a person they are representing in another matter, even if the matters are totally unrelated.
Can a lawyer engage in simultaneous representation in unrelated matters of clients whose interests are only generally adverse?
Yes. simultaneous representation in unrelated matters of clients whose interests are only generally adverse can be undertaken even without client consent.
Consent Exception;
A lawyer can represent a client with a conflict of interest if:
- all affected clients consent in writing;
- after being informed of the risks, consulting the lawyer; and
- having the chance to seek independent legal advice.
What is a nonconsentable conflict?
Client consent cannot override conflicts if the representation:
- is prohibited by law or the rules;
- involves suing another client of the lawyer in the
same or related case; or - if it’s unlikely the lawyer can adequately represent all affected clients.
When can an attorney represent joint parties?
An attorney may only represent parties jointly if the attorney has reasonably determined that the parties share a common interest in the outcome of the case such that there is no conflict of interest in representing both parties.
What must an attorney do if a conflict arises with joint parties?
If such a conflict should arise between joint parties, the attorney must advise all parties of the conflict and advise then to seek independent legal counsel and then give them an opportunity to do so.
Are jointly represented parties’ communications with the attorney privileged as to each other?
No. The jointly represented communication with the attorney is not privileged as to each other.
What are impermissible conflicts of joint parties?
Impermissible conflicts of joint parties may arise because of:
- a substantial discrepancy in the parties’ testimonies;
- incompatibility in positions in relation to the opposing party; or
- substantially different possibilities of settlement of the parties’ claims or liabilities in question.
Can a lawyer representing multiple clients make a combined settlement without consent?
No. A lawyer cannot make a combined settlement without each client’s informed consent.
Representing Criminal Co-Defendants
A lawyer is almost never permitted to represent simultaneously two defendants accused of committing the same crime because the possibility of conflict is too great.
Representing Two Clients with Inconsistent Positions;
A lawyer can represent clients with opposing views in separate cases if it doesn’t harm either client’s representation. Asserting opposing positions is usually acceptable in different trial courts, but may be improper at the appellate level.
Can a lawyer represent two clients whose interests are economically or politically adverse?
Yes. A lawyer can represent two clients whose interests are economically or politically adverse without implicating the Rules.
Can a lawyer represent a new client in the same related matter that are materially adverse to a former client’s interests?
No. A lawyer cannot represent a new client in the same or a substantially related matter that is materially adverse to a former client’s interests without the former client’s informed consent.
What is a matter that is substantially related?
Matters are “substantially related” if the lawyer was deeply involved in a prior case whose decision impacts a subsequent case, or if the lawyer learned confidential information in the earlier case that could be used against the former client in the current case.
Is handling a case against a former client that is similar to the type that lawyer once handled for that former client prohibited by Rule 1.9(a)?
No. Handling a case against a former client that is similar to the type that the lawyer once handled for that former client is not prohibited by Rule 1.9(a) as long as he does not use protected information in the representation.
What is the general rule for entering into business transactions with a client?
A lawyer is prohibited from entering into a business transaction with a client and from knowingly acquiring an ownership, possessory, security, or other pecuniary interest adverse to the client.
What is required for permissible business deals with clients?
- Written consent from the client;
- the client is given the chance to seek independent legal advice;
- terms are fair and reasonable; and
- full written disclosure of the terms in a clear and understandable manner to the client.
Can a lawyer draft documents that benefit themselves for gifts?
A lawyer is prohibited from drafting documents that significantly benefit themselves or their relatives through client gifts, unless the client is a relative.
Even with client consent, another independent lawyer must prepare such documents to avoid conflicts of interest.
Can a lawyer accept a gift that does not require an instrument?
Yes. A lawyer may accept a gift that does not require an instrument such as a present given at a holiday.
What is the general rule for acquiring media rights to a client’s story?
Before ending a client’s representation, a lawyer cannot agree to or negotiate literary or media rights to a portrayal or account of the case using information from the representation.
Can a lawyer obtain a share in the ownership of the client’s literary property as a fee?
Yes. A lawyer can receive ownership interest in a client’s literary property as payment for services if the arrangement adheres to rules.
what is the rule for acquiring an interest in or financing client’s litigation?
A lawyer may not acquire a pecuniary interest in the cause of action or subject matter of litigation he is conducting for a client.
What must a lawyer not provide to a client in connection with pending litigation?
Financial assistance, except advancing court costs and expenses of litigation.
What is a prospective agreement regarding limiting liability for malpractice?
A lawyer may not make an agreement prospectively limiting liability to a client for malpractice unless permitted by law.
Can a lawyer pay living expenses for an indigent defendant in a non-contingent fee case?
No, a lawyer cannot pay living expenses or other expenses not directly related to the litigation.
What is a prospective agreement in relation to a lawyer’s liability?
A lawyer may not make an agreement prospectively limiting his liability to a client for malpractice unless permitted by law and the client is independently represented.
Can a lawyer settle a malpractice claim with an unrepresented client?
No, a lawyer may not arrange to settle a claim for such liability with an unrepresented client without advising them in writing that independent representation is appropriate.
What is imputed disqualification in legal representation?
Imputed disqualification occurs when a lawyer’s personal relationships with close relatives who are lawyers or professional relationships with a law firm cause vicarious disqualification.
Can a lawyer represent a client against someone represented by a related lawyer?
No, a lawyer cannot represent a client against someone represented by a lawyer related to them without the client’s consent after discussing the relationship.
What is the general rule for conflicts of interests of third persons?
Under Georgia Rule of Professional Conduct 1.7, a lawyer must not represent a client if there’s a significant risk that the lawyer’s responsibilities to a third person will materially and adversely affect the representation. However, the lawyer may proceed if:
- The lawyer reasonably believes the representation will not be adversely affected; and
- The client gives informed consent after consultation.
Under what conditions can a lawyer accept payment from a third party for representing a client?
A lawyer can accept payment from a third party if:
1. the client consents after consultation
2. there is no actual interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship
3. information relating to representation is protected.
True or False: A lawyer must maintain independence even if the client consents to third-party influence.
True.
What must a lawyer guard against when representing an insured paid by an insurance company?
The lawyer must guard against allowing the insurance company to direct actions to the client’s detriment.
In what context must a lawyer independently represent a minor child?
In the family context, a lawyer must independently represent a minor child accused of a crime, despite the parent paying for the representation.
A corporation providing counsel for an officer accused of wrongdoing;
When a corporation provides legal counsel for an officer accused of wrongdoing, the lawyer must ensure their representation of the officer is independent of the corporation’s interests. If a conflict of interest exists, the lawyer should advise the officer to seek independent counsel.
Can a lawyer serve on a legal services organization that serves persons with interests adverse to a client?
Yes, a lawyer may serve as a director, officer, or member of a legal services organization even if it serves persons with adverse interests.
What is the identity of the client when representing an organization?
The lawyer’s client is the entity, not the individuals acting on its behalf.
What must a lawyer clarify when interacting with an organization’s affiliates with conflicting interests?
The lawyer must clarify who the client is.
Is dual representation of an organization and its individual constituents permitted?
Yes, if their interests do not appear materially adverse.
What should a lawyer do if aware of an associated person’s actions that violate legal duties?
The lawyer must act in the organization’s best interest and consider the seriousness of the violation and its consequences.
What measures can a lawyer take when dealing with improper conduct by individuals in an organization?
Measures may include:
1. Asking the person to reconsider the matter
2. Advising to seek a separate legal opinion
3. Referring the matter to higher authority.
What should a lawyer do if the highest authority of an organization insists on actions violating the law?
The lawyer may resign in accordance with rule 1.16.
What can a lawyer do if the highest authority refuses to act on a matter that could cause substantial injury to the organization?
The lawyer may reveal information relating to the representation to prevent substantial injury.
What should a lawyer maintain when a client’s decision-making ability is impaired?
The lawyer must maintain a normal lawyer-client relationship as far as reasonably possible.
Disclosures of Client information to Opposing Counsel and the Court
A Lawyer can reveal matters to opposing counsel and to the court if those revelations will further the client’s case.
A lawyer can disclose information in litigation by admitting a fact that cannot properly be disputed, or in negotiation by disclosing that facilities a satisfactory conclusion.
What action can a lawyer take if they believe the client cannot act in their own interest?
The lawyer may seek the appointment of a guardian or take other protective action.
