ACR Duties Flashcards
Confidentiality, Privilege, Work Product Protection
Confidentiality
lawyer can’t reveal info relating to representation of client (doesn’t have to come from client), UNLESS:
-client gives informed consent
-disclosure is impliedly authorized in order to carry out representation
lawyer MAY reveal info relating to representation of a client to the extent lawyer reasonably believes necessary:
-To prevent reasonably certain death or substantial bodily harm
-Prevent/rectify substantial financial injury to another if services used in furtherance of crime or fraud
-To secure legal ethics advice
-To establish claim or defense, or respond to any allegation on behalf of lawyer in controversy between lawyer and client (in either civil or criminal claim)
-Comply with court order
-To detect and resolve conflicts of interest arising from lawyer’s change of employment or changes in composition of firm ONLY IF revealed info would not compromise AC privilege
** survives death + termination of representation
AC Privilege
Cannot disclose confidential communications in a court proceeding between attorney and client or agents and client for the purpose of obtaining legal advice, and not for furtherance of crime or fraud
Applies to prospective clients, organizational clients, but org hold privilege and controls decision to waive or not waive privilege
DOES NOT apply to pre-existing docs + records
** survives death + termination of representation
Exceptions to AC Privilege:
(1) Joint Privilege
What: lawyer represents two clients on the same matter.
After representation ends, any former communication between joint clients is not privileged.
(2) Privilege after Death of Client
When intent or competency of deceased client is at issue, can disclose AC privileged info
(3) Self Protection
(A) Through raising issues → Ex: Client says that they relied on lawyers advice. This would be an affirmative defense. That advice does not have privilege
(B) Through claim against lawyer → Ex: Client sues lawyer for malpractice, privilege is waived to extent that lawyer need to defend herself
(4) Looking for aid in future crime or fraud
Waiver of AC Privilege
Waiver belongs to client but attorney must claim on behalf of client in client’s absence
If entities, waiver belongs to entity.
Waived if:
Lawyer, lawyer’s agent, or client discloses AC privileged info to third party OR
Lawyer, lawyer’s agent, or client fails to object when AC privileged info is disclosed
Work Product Privilege
Tangible or intangible product that is collected or prepared in anticipation of litigation = not discoverable
Core Work or Opinion Work Product: Lawyer’s mental thoughts, impressions, strategies → immune from discovery unless compelled upon showing of extraordinary need
Qualified Work Product: List of witnesses generated by lawyer→ might be subject to discovery if party can establish substantial need + obtaining through other ways can cause “undue hardship:”
Competence
Duty of competence is owed to the client and sometimes third party beneficiaries of the legal services (in rare situations)
Before taking on a case,
Lawyer must be physically, mentally, and technologically competent AND
Lawyer must exhibit/possess legal knowledge, skill, thoroughness, and preparation
Lawyer may acquire competence through
(1) studying or
(2) associating with co-counsel who is competent
Advisor
In representing a client, a lawyer shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client’s situation.
Safekeeping Property
-No commingling client’s property with your own property
Recording, Notification, and Delivery
Lawyer must:
-Keep complete records of all money and property
-Preserve records for five years after representation
-Comply if client requests accounting
-Promptly notify client or third party upon receipt of property in which they have interest
-Promptly deliver property
Client Trust Accounts
Firm’s money needs to be put in office account
All money that lawyer receives in connection with representation must be placed in a client trust fund account, including advance payments (firm can put own money in client trust account for bank services charges only)
Client trust fund account must be located in state where lawyer practices unless client consents to having it elsewhere
Disputed Property
Dispute between lawyer and client
Must keep disputed portion in client trust account until dispute resolved
Dispute between client and third party
If third party has valid claim (like a creditor with lien), must keep disputed portion of recovery in client trust account until dispute resolved
Declining or Terminating Representation
Must decline or withdraw when:
(1) Lawyer’s physical or mental condition materially impairs ability to represent client
(2) Representation is in violation of RPC
(3) Fired by client
Permissible withdrawal
(1) Any reason if no material adverse effect on interest of client
(2) Reasonable belief client doing something criminal or fraudulent involving lawyer’s services
(3) Client used lawyer’s services in past crime or fraud
(4) Client’s actions repugnant
(5) Client makes representation unreasonably difficult
(6) Client hasn’t paid and has been warned
(7) Representation will cause an unreasonable financial burden on you
Other good cause
If Judge Orders You to Represent
When ordered to do so by a tribunal, a lawyer must continue representation notwithstanding good cause for terminating the representation.
Post-termination issues
Reasonable notice to client
Refund advance payments if not earned
Return client’s file unless permitted by law to retain
Communications regarding fees
Must community basis or rate of fee before or within reasonable time of representation
Changes to fees must also be communicated
Exception:
Routine representation of regular client
Even if total amount is reasonable, must communicate any change in normal rate to client and has to be done BEFORE work is completed
Contingent Fees Not Allowed
Domestic relations
Criminal cases
Ex: watch for collection cases for arrearages.
Contingency Fee Requirements
Must be in writing and signed by the client AND must disclose:
Who is paying expenses
How fee will be calculated
Which expenses will be deducted and when
Provide written statement at case conclusion
Fee splitting with other lawyers in your firm
Current lawyers in your firm
Retired members of your firm
Former firm lawyers with pending cases
Fee splitting with lawyer from different firm
Both lawyers must be involved or responsible + Client Consent + Client Informed on what share lawyer will receive + Agreement in writing + total fee must be REASONABLE.
Option 1: Split proportionate to services performed by each
Option 2: Each assumes joining responsibility and fee split any way they like
Required communication with client
Case status updates
Game plan
Response to reasonable requests for info
Anything that requires informed onset
Must promptly tell client of settlement and plea bargain offer UNLESS client told you beforehand that offer would be ok or not okay or gave you authorization to accept or reject the offer
