4) duties to Cs Flashcards
duty of competence: CA
–CA: dn intentionally, recklessly, w gross negligence, or repeatedly fail to perform legal services w competence
duty of competence: CA + MR
- -provide competent rep
- -dont accept rep that dnh time/resources to do properly
competence defined: CA
applying:
- -learning + skill, and
- -mental, emo, physical ability reaonably nec to perform legal services
ok get competence by:
association w comptent L
acquire learning + skill before performance required
competence: exception; CA
in emergency ok give limited nec advice
competence + discipline: CA
- -incompetence must be intentional, repeated, or grossly negligent to warrant discipline
- -long period of neglect of matter –> willfulness
- -not to punish for mistakes/etc unless failed to get the skills
malpractice agreements: CA vs MR
CA: can NOT prospectively limit liability for malpractice
MR: can prospectively limit if C is independently rep’d in the agreement
malpractice settlements: CA + MR
can’t settle claims for malpractice w/o first informing C in writing of right to seek indep counsel + giving opportunity to
standard of care: CA
- -CA ethics rules are admissible evidence of SOC in malpractice
- -can be ordinary neg IF P can show likelihood of favorable outcome and that could have collected
- -crim D suing for malpractice that led to conviction must show D’s actual innocence – not just errors
- -can claim emo distress too
duties to 3rd parties: CA
–no liability for malpractice to ppl other than C unless, L owed indep duty of care (ex. fiduciary, or beneficiaries of will or trust)
duties to 3rd parties: CA: balancing test
factors:
- -extent to which transaction intended to affect P
- -foreseeability of harm to P’
- -how certain is it that P was actually injured
- -closeness of connection btwn L’s conduct and injury
- -policy of preventing future harm
- -does holding L liable impose undue burden on profession?
malpractice SOL: CA
EARLIER OF:
- -1 year afte rP discovers facts or should have discovered by reasonable diligence:
- -4 years from date of wrongful act / omission
(different if actual fraud)
conflicts: personal/financial: CA + MR
L can’t enter business transaction w C or knowingly acquire business interest adverse to C
exceptions:
- -fair + reasonable to client and disclosed in writing +
- -C advised to get indep legal advice +
- -C gives informed consent
conflicts: personal/financial: CA + MR: when can still rep C
L reasonably believes rep won’t be adversely affected AND
full disclosure, informed written consent
gifts from Cs: CA + MR
no soliciting substantial gift, unless L related to C (or C gets certificate of independent review from another L)
use of C info: CA + MR
can’t use info from rep of past or present C to disadvantage of C, w/o C’s informed consent
acquiring interest in litigation: CA vs MR
MR: can’t acquire proprietary interest in the COA or subject matter of litigation (but ok get a lien or have contingency fee)
CA: no similar rule! BUT can’t get a financial interest in ac ase that woudl be adverse to C, w/o C’s informed written consent
giving financial assistance to C: CA vs MR
MR: can’t give $ to C in connection w litigation except advancing costs OR paying costs if C indigent
CA: broader than just litigation. OK pay C’s personal or business expenses when:
- -C consents + L pays 3rd party w funds from rep
- -following employment, L lends $ to C who has agreed in writing to repay
- -L is advancing costs + repayment contingent on outcome
payments from 3rd parties: CA + MR
can’t accept payment from 3rd party unless
- -no interference w L’s independence or rship
- C information kept confidential
- -C gives informed written consent (unless: public agency or nondisclosure authorized by law)
concurrent conflicts: CA + MR
can’t rep C if concurrent conflict:
1) rep is directly adverse to another C in same or separate matter, OR
2) significant risk that L’s rep of new C would be materailly limited by duty to a current C, former C, 3rd person, or L’s own interests
concurrent conflicts: CA only
even if no significant risk that L’s rep of the C will be materially limited by responsibilities to another C, still can’t rep w/o written disclosure if:
1) L (or firm) has legal/business/personal/etc rship w a party or wit in same matter, OR
2) L knows or reasoanbly should know that another party’s L is spouse/parent/cild/sibling of the L, lives the the L, is client of the L/firm, or intimate personal rship
duties to crim-Ds: CA + MR
if rep 2+ crim-Ds (which cant do if must take preferential action for one to help other)
no aggregate settlement or agreemtn of pleas unless informed written consent
exception: class action settlements w court approval
prospective clients: def: CA + MR
PC: person who consults w L about possibility of forming L-C rship
prospective clients: CA
L can’t use / reveal info learned from prospective C or repping C w interests materially adverse
- -in the same or related matter
- -if L received info from the PC that could be significantly harmful in the matter
(exception: IWC)
–other L in firm can rep?: only if took reasonable measures to avoid exposure to info + timely screened from fee + participation + written notice to the PC
sexual relations w client: CA + MR
can’t do it unless married or had consensual rship before L-C started
