Basic Duties to Clients Flashcards
Duty of Competence
Must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation. Includes keeping up with changes in the law and practice, and the benefits and risks of relevant technology.
CA: Includes mental, emotional, and physical ability.
Duty to Gain Competence
If a lawyer doesn’t know the law, they have a duty to decline to represent a client unless they can: (1) learn the law without undue expense/delay to the client, or (2) consult with a lawyer competent in the area.
However, an incompetent lawyer may act for a client in an emergency.
Duty of Diligence
Must act with reasonable diligence in representing a client, controlling workload so each matter can be adequately handled. Must act with dedication to the client’s interests, promptly pursuing the matter to completion.
CA: Must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence. Generally, no discipline for a minor, isolated act.
Duty of Communication (generally)
Must explain the matter to a client to the extent necessary to permit them to make informed decisions. Must keep clients reasonably informed about the status of the case, informing them of significant developments. Must promptly comply with all reasonable requests for information from the client.
CA: Must also tell client, in writing and at the time of engagement, when the lawyer doesn’t have professional liability insurance, or within 30 days of losing such insurance during the course of representation. However, disclosure not needed if: (1) representation won’t exceed 4 hours; (2) the lawyer is acting within their direct employment as government or in-house counsel; or (3) the lawyer is rendering services in an emergency.
Communicating Plea Bargains and Settlement Offers to Clients
Must notify client of any settlement offers or proffered plea bargains, unless the client has previously indicated such an offer would be adequate/inadequate, or has authorized the lawyer to accept or decline on their behalf.
CA: Must always, promptly communicate to client, or anyone with authority to accept an offer, (1) in a criminal case: all terms and conditions of a proposed plea bargain or other dispositive offer; and (2) in all other matters, all amounts, terms, and conditions of any written offer of settlement (must also communicate oral offers of settlement in a civil case if it’s a significant development).
Delaying Communication of Certain Information to Client
A lawyer may delay giving their client certain information if the client would be likely to react imprudently to immediate communication of the information.
CA: Can only delay disclosure if the lawyer reasonably believes that the client would be likely to react in a way that may cause imminent harm to themselves or others.
Obtaining a Client’s Informed Consent
Informed consent requires communication of adequate info and explanation about the risks/alternatives to a course of conduct. Under the ABA, this communication can be oral, but sometimes a situation requires confirmation in writing of the oral communication, which must be promptly sent to the client. Stricter situations may require a signed writing from the client or that the disclosure itself be in writing.
CA: Generally, informed written consent is required (both the disclosure itself and the client’s consent must be in writing).
Duty of Confidentiality
The duty applies to all information received in the course of representation, regardless of its source. The lawyer cannot reveal such information unless the client consents or an exception the duty applies. The lawyer also cannot use a client’s confidential info to the client’s disadvantage without the client’s consent or applicability of an exception. Lawyer has an affirmative duty to take reasonable measures to prevent unauthorized access to, or inadvertent disclosure of, the client’s confidential info.
Duty attaches to consultations with prospective clients (even if the lawyer isn’t ultimately hired) and survives termination of the representation and the death of the client.
Exceptions to Duty of Confidentiality
Where an exception applies, disclosure is PERMITTED, but not required. Additionally, a lawyer may only disclose to the extent necessary to meet the exception.
(1) Consent/implied authority (includes routine “conflicts checks” at firms)
(2) Disclosure to prevent reasonably certain death or substantial bodily harm [in CA, must be to prevent a criminal act likely to cause death or substantial bodily harm, but before disclosure, lawyer must make good faith effort to persuade client not to act or try to prevent it, if reasonable under the circumstances. Also, must inform client of ability or decision to report]
(3) Disclosure to prevent/rectify substantial financial loss (ABA ONLY)
(4) Disclosure to defend self/establish claim against client
(5) Disclosure to obtain legal ethics advice (ABA ONLY - but in CA there is a confidential legal ethics hotline)
(6) Disclosure to address a conflict of interest from an organizational change (ABA ONLY)
(7) Disclosure to comply with a court order or other law (but must try to challenge it first.
Duties Superseding the Duty of Confidentiality
Outside reporting of corporate violations and the duty of candor to the tribunal supersede the duty of confidentiality ONLY under the ABA.
In CA, no other ethical duty supersedes the duty of confidentiality.
Attorney-Client Privilege
Allows client to refuse to testify and prevent lawyer from testifying about confidential communications between the two. Applies only to communications related to legal services.
Where client is a corporation, communications with a corporate employee are generally privileged if they’re directed/authorized by the corp and concern the employee’s duties.
Exceptions: Doesn’t apply to client seeking attorney’s services to enable/aid in crime/fraud or to communications relevant to an issue of a breach of duties arising out of the AC relationship. Doesn’t apply where client puts legal services at issue in the case, or in civil litigation between multiple people who were former clients of the lawyer, or where lawyer is called to give evidence about client’s competency/intent where client has tried to dispose of property by will/transfer.
CA: AC privilege ends after client dies and estate is settled and personal rep is discharged. No AC privilege when disclosed necessary to prevent criminal act likely resulting in death/substantial bodily harm.
