CA PR Flashcards
ABA Duty of Competence
Under the ABA Model Rules, a lawyer is obligated to provide competent representation to a client and must possess legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
CA Duty of Competence
The California Rules of Professional Conduct require that a lawyer may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence, which requires learning a skill, and mental, emotional, and physical ability reasonably necessary for the representation.
A lawyer can make himself competent through reasonable preparation or by associating with a lawyer of established competence in the field.
Competency includes the duty to supervise the work of subordinate L and non-L employees.
ABA Duty of Diligence
A lawyer must be dedicated and committed to the interests of his client despite obstruction or inconvenience to the lawyer. A lawyer is not bound, however, to press for every possible advantage that might be realized for a client.
CA Duty of Diligence
L may not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing C.
Duty of Loyalty - Conflict of Interest
A potential COI arises when there is a significant risk that the representation of a client may be materially limited by the lawyer’s own personal interests or by the interests of another current or former client.
CA: L can’t have legal, business, financial, professional, or personal relationship with the party in the same matter.
Duty of Loyalty - COI Exceptions
Under both the MR and the CA RPC, if a concurrent COI exists, a lawyer may be able to undertake representation if
i) the lawyer reasonably believes that he will be able to provide competent and diligent representation to the affected client
ii) the representation is not prohibited by law
iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal
iv) the affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA)
CA Informed written consent
Requires written disclosure of the potential adverse consequences of the client consenting to a conflicted representation
CA Informed written consent
Requires written disclosure of the potential adverse consequences of the client consenting to a conflicted representation
Duty of Loyalty - COI Former Clients
Under the MR and the CA RPC, a lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client, unless the former client gives informed consent, confirmed in writing (MR) or informed written consent (CA).
Duty of Loyalty - COI Prior Law Firm
Under the MR, any COI that arises from the lawyer’s association with a prior law firm will not be imputed to the lawyer’s new firm if
(i) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee,
(ii) written notice is given to any affected former client to enable the former client to ascertain compliance with ethical rules, and
(iii) certification of compliance with ethical rules and with screening procedures is provided to the former client by the screened lawyer and by a partner of the firm at reasonable intervals upon the former client’s written request and upon termination of the screening procedures.
Duty of Loyalty - Sexual Relations with Client
ABA & CA: L may not engage in sexual relationship with C unless it preceded the representation.
CA: exception if C is L’s spouse or registered domestic partner.
Duty of Loyalty - Loans to Client
L cannot provide financial assistance to C in connection with litigation, except for
i) advancing litigation expenses (repayment may be contingent on outcome) and
ii) paying litigation expenses for indigent C
CA: L may lend money to C for any purpose if C gives written promise to repay.
Duty of Loyalty - COI Pecuniary Interest
ABA: Pecuniary interest in C’s property is only allowed as lien to secure fees or contingency fee
CA: retaining liens are not allowed.
Fees - Standards
ABA: Fees cannot be “unreasonable”
CA: Fees cannot be “illegal or unconscionable”
ABA & CA Factors include: novelty and difficulty of legal issues, time limitation, nature of relationship with client, experience, contingency
CA Additional: amount in proportion to value of services, relative sophistication of attorney and client, client’s informed consent to fee
Fees - Agreements
ABA & CA: Contingency fee agreement must be in writing
ABA: Fee agreement is preferably in writing, except for regularly represented clients with same basis or rate
CA: For non-contingency cases, written agreement required only if reasonably foreseeable that it is over $1,000.
Fees - Third Party Compensation
May take compensation from non-client, only if
1) 3P does not interfere with independence of professional judgment or with lawyer-client relationship,
2) C info is kept confidential and
3) ABA: C gives informed consent // CA: C gives informed, written consent
Fees - Referral fees
ABA: Prohibited
CA: L may pay fee to a referring lawyer only with written client consent and if the total fee is not increased.
Fees - True Retainers
CA: L may charge non-refundable fee to ensure L’s availability to C if C agrees in writing
Fees - Arbitration
CA: C may elect arbitration of dispute of L’s fees, unless agreed in writing to mandatory arbitration
Duty to Safekeep Client Property
Depositing L’s funds in C trust account permitted to extent reasonably necessary to pay bank charges
CA: EXCEPTION - advance flat fee with written notice
Duty of Confidentiality
L must not reveal information relating to the representation of a client, UNLESS:
ABA & CA: 1) informed consent from C, 2) suit v. client, 3) collect fees, 4) compelled by court/law
ABA:
- To prevent death or serious bodily harm
- To prevent crime/fraud likely to cause substantial financial harm
- To get ethics advice
- Compelled by ethics rules
CA: MAY reveal to extent necessary after dissuading C and informing C that info can be revealed.
Organization as Client (Reporting up Client Org)
ABA & CA: When L knows that action of rogue officer or employee is likely to result in substantial injury to the org, L must proceed as is reasonably necessary in the best interest of the org.
ABA: Report up the chain of command up to the highest level (Board). If fails and there is substantial risk of harm to the org, L may reveal info outside to the extent necessary.
CA: Urge rogue employee to reconsider while explaining likely consequences. L must not violate duty of confidentiality. If this fails, withdraw from rep (never authorized to reveal info to outside).
Mandatory Termination of Representation
ABA: Termination mandatory if representation will result in violation of the rules or other law, L’s physical or mental condition materially impairs ability to represent client, or L is discharged by C
CA: Termination is mandatory if L knows or should know that representation will result in violation of rules. L’s physical or mental condition renders it unreasonably difficult to carry out representation effectively, L is discharged by C, or frivolous litigation.
Withdrawal of Representation - Permissive
ABA: C insists on action L considers repugnant, crime or fraud, unreasonably difficult. C agrees to termination. Other good cause.
CA: Above, or, C insists on action not warranted under existing law, or continued representation is likely to result in violation of these rules.
