Duties Arising From Lawyer-Client Relationship Flashcards
Concurrent Conflict of Interest
A concurrent conflict of interest exists if the representation of one client is directly adverse to another; or, if there is a significant risk that the representation of one client will be materially limited by the lawyer’s duties and responsibilities to another client, former client, third person, or by the lawyer’s personal interest.
Duty of Loyalty - Conflict of Interest
A lawyer has a duty to avoid any actual or potential conflict of interest with his or her client.
Curing Conflict of Interest
A lawyer may still represent a client despite a concurrent conflict of interest if: the lawyer reasonably believes he can provide competent and diligent representation, it is not prohibited by law, and each client gives their informed written consent.
CA No Risk Limitation
Even if there is no significant risk of material limitation, the lawyer must provide written disclosure of the relationship if there is any type of legal, business, professional, or personal relationship with the party.
CA Insurance Rule
A lawyer may represent both insurers and the insureds whereby the insurer has the contractual right to unilaterally select counsel for the insured, resulting in no conflict of interest.
Organizational Client
A lawyer employed by an organization or corporation represents the organization or corporation and must act in the best interest of the organization/corporation.
Representation of Organization’s Individuals
A lawyer may represent the individuals of the organization if the exception for representing clients with conflicts of interest are met.
Reporting an Organization’s Misconduct to a Higher Authority
If the lawyer knows that a constituent is engaged in action, intends to act or refuses to act in a manner that is likely to result in substantial harm/injury to the organization the lawyer shall report up, and refer the matter to a higher authority in the organization, unless the lawyer reasonably believes that it is not in the best interest of the organization to do so.
Higher Authority in Organization Fails to Act
Under ABA: A lawyer may report out and reveal confidential information if it is necessary to prevent injury to the organization.
Under CA: A lawyer may not report out unless it is necessary to prevent a criminal act likely to result in death or substantial bodily harm. But, lawyer must first urge reconsideration or withdraw.
Aggregate Settlements
No aggregate settlements or guilty pleas. A lawyer who represents two or more clients shall not participate in making an aggregate settlement of the claims of or against the clients, or, in a criminal case, an aggregate agreement as to guilt or pleas, unless client gives informed written consent.
Former Government Employee
A lawyer who has formerly served as a government employee shall not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government employee unless the governmental agency gives informed written consent.
Same standard applies to lawyers who served as third-party neutrals; all parties to proceeding must give informed written consent.
Imputed Firm Disqualification
A conflict for one attorney in a firm is imputed to all other attorneys in the firm, resulting in their disqualification, unless: the conflict is based on: a personal interest of the disqualified lawyer, or the conflict is based on: a former client at a prior firm, and the conflicted lawyer is timely screened from any participation in the matter, and the former client is provided written notice and certifications of compliance with the screening procedures, and (CA only – the prohibited lawyer did not substantially participate in the same or a substantially related matter).
A client can waive any imputed disqualification with informed written consent.
Lawyer Leaves Firm
When a lawyer has terminated an association with a firm, the firm may thereafter represent a person with interests adverse to those of a client represented by the formerly associated lawyer unless the matter is: substantially the same, and any remaining lawyer has protected confidential information that is material to the matter.
Conflicts Between Client and a Third Party - Compensation From Third Parties
A lawyer shall not accept compensation from third parties to represent the client unless (1) Under ABA: Client gives there informed consent; Under CA: Client gives their informed written consent (2) there is no interference with the lawyer’s independent judgment on behalf of the client or the lawyer-client relationship; and (3) information regarding representation remains confidential.
Conflicts Between Client and Lawyer’s Personal Interests
- Lawyer’s personal relationships and beliefs
- Sexual relations with clients
- Business transactions with clients
4.Solicitation of gifts - Proprietary interest
- Financial assistance/advances to client
- Limiting malpractice liability
Opposing Counsel is Lawyer’s Relative
When lawyers are closely related by blood or marriage, they must obtain informed consent before representing clients in the same or substantially related matters.
Under CA: The same rule plus - one lawyer is client of the other lawyer, two lawyers cohabitate, or tow lawyers have a personal intimate relationship.
Lawyer’s Personal Beliefs
The lawyer may still represent the client despite any conflict with his personal belies, with full disclosure and informed written consent.
Sexual Relations With Clients
A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed before the lawyer-client relationship commenced.
Under CA: The rule does not apply to sexual relations with the lawyer’s spouse or registered domestic partner.
Sexual Relations With Opposing Counsel
If past sexual relationship, apply the COI general rule and COI exception.
If past relationship has no significant risk of material limitation, informed written consent is not required.
Business Transactions With Clients
A lawyer shall not enter into a business transaction with a client or knowingly acquire an interest adverse to the client unless: terms are fair and reasonable to the client, and terms fully disclosed in writing in an understandable way to the client [CA- also requires lawyer’s role in the transaction be fully disclosed in writing], and client is advised in writing to seek independent counsel [OR in CA – ok if client is actually represented by an independent lawyer of client’s choice], and client gives informed written consent to essential terms (including whether the lawyer is representing the client in the transaction).
Exceptions to Business Transactions With Clients
A lawyer can acquire a lien to secure the lawyer’s fees or contract with a client for a reasonable contingency fee in a civil case.
Solicitation of Gifts From Client
A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare an instrument that gives the lawyer, or a person related to the lawyer, a gift unless the lawyer or recipient is related to the client.
Under CA, a lawyer may accept a gift if: the client has been advised by an independent lawyer who has provided a certificate of independent review, or the gift is fair and there is no undue influence.
Proprietary Interest in Cause of Action
A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation unless it is to: acquire a lien to secure attorney’s fees, and/or contract for a reasonable contingency fee in a civil case.
Financial Assistance to Clients
Under ABA: A lawyer shall not provide financial assistance to a client in connection with litigation. The exception is for contingency cases or for indigent clients.
Under CA: A lawyer may lend money to the client after employment, for any purpose, if the client promises in writing to repay the loan.
Limiting Malpractice Liability
A lawyer shall not agree to limit the lawyer’s own malpractice liability to the client.
ABA only exception: The lawyer can limit his liability if the client is independently represented in making the agreement. No CA exception.
If there is no malpractice insurance, must inform the client inn writing.
Settlement of Claims Between Lawyer and Client
A lawyer shall not settle a claim or potential claim such liability with an unrepresented client or a former client unless that person is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek independent counsel.
CA: If they are in fact represented by counsel.
Duty to Communicate
A lawyer shall: promptly inform client of any decision that affects client’s informed consent; reasonably consult with client and keep them informed of the status of the case (such as settlements/please), and promptly responds to client’s communications and reasonable requests for information. A lawyer is not required to notify client if the client has previously indicated the proposal would be acceptable or unacceptable, or previously authorized the lawyer to accept or reject the offer.
CA: A lawyer is allowed to delay transmission of information to the client if the lawyer reasonably believes that the client would be likely to react in a way that may imminent harm to the client or others.
Scope of Representation
A lawyer-client relationship is created by an express oral or written agreement of the parties. A lawyer may limit the scope of representation if (1) the limitation is reasonable under the circumstances and (2) the client gives informed consent.
Lawyer must abide by client’s substantive decisions (those concerning the objectives of the representation – whether to accept settlement, waive jury trial, testify, appeal, plea in a criminal case, etc.) after the lawyer has consulted with client.
Lawyer is responsible for employing the appropriate legal strategy (file motions, discovery, witnesses, evidence to use, direct and cross-examine, etc.). Lawyer may limit the scope of representation if it is reasonable, and client gives informed consent.
Duty of Confidentiality: ABA (Cats and Dogs Can Cuddle and Dream)
A lawyer shall not reveal information relating to the representation of the client except in the following situations: client gives informed consent, disclosure impliedly authorized, reasonably believes disclosure is necessary to prevent reasonably certain death or substantial bodily harm, prevent client from committing a crime or fraud or to mitigate or rectify a crime or fraud committed by client, comply with a court order, ethic, rule, or statute, secure legal advice about lawyers compliance with ethics rules, or to establish a claim or a defense on behalf of the lawyer in a dispute between lawyer and client, or in the defense of conduct client was involved in with the lawyer’s services.
Duty of Confidentiality: CA
Lawyer shall not reveal information relating to the representation of the client without the informed consent of client, except lawyer may in the following situations: when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm, however the lawyer must: first make a good faith effort to persuade the client not to commit the criminal act, inform the client of lawyer’s ability to reveal the information, and only reveal as much information as necessary to prevent the crime; when compelled by law or court order; or to establish a claim or defense on behalf of lawyer in a controversy between lawyer and client, or in defense of the conduct client was involved in with lawyer’s services.
Attorney-Client Privilege
Allows the client to keep confidential: all communications with their attorney, that is intended to be confidential, and made for the purpose of facilitating legal services. Client can refuse to testify and prevent lawyer from testifying. The client holds the privilege and lawyer may assert on the client’s behalf.
Under CA, if the client passes away, the AC privilege terminates when the client’s estate is settled, and the personal representative is discharged.
Attorney-Client Privilege: Communications Through an Agent
This privilege occurs not only to direct communication between lawyer and client, but also communications made through or in the presence of an agent who facilitates the AC relationship.
Exception to AC Privilege
Lawyer’s services were used to further crime or fraud; or relates to a dispute between lawyer and client; or two or more parties consult on a matter of common interest and the communication is offered by one against another; or CEC only – lawyer reasonably believes the disclosure is necessary to prevent a crime that is likely to result in a death or substantial bodily harm.
Inadvertent Disclosure
Attorney who receives inadvertently disclosed documents must stop examining document, promptly notify sender, and not use the document to their advantage.
Does not waive AC privilege if the holder took reasonable steps to rectify the error.
Work Product Doctrine
Lawyers’ opinions absolutely protected and factual information protected unless undue hardship for the other party to obtain. Made in anticipation of litigation.
CA: Provides absolute work product protection to writings reflecting an attorney’s impression, conclusions, opinions, or legal research.
Fee Amount: ABA (TENT FLAW)
All fees must be reasonable considered the following factors: Time limitations imposed by client or circumstances; Experience, reputation, and ability of lawyer; Nature and length of the relationship with client; Time and labor, novelty and difficulty, and skill required; Fee customarily charged in the locality for similar services; Likelihood that the acceptance will preclude other employment; Amount involved and results obtained; and Whether the fee is fixed or contingent.
Fee Amount: CA (Furry Dogs Satisfy Anxious Clients)
Fees may not be illegal or unconscionable based on the same factors above, including these additional factors: Whether lawyer engaged in fraud or overreaching in setting the fee; Whether lawyer failed to disclose material facts; Sophistication of both lawyer and client; The amount of the fee in proportion to the value of the services performed; Whether client gave informed consent to the fee.
Fee Content and Formalities
Fee agreements should include how the fee is calculated, the general nature of legal services, and responsibilities of lawyer and client.
Under ABA: No writing requirement for regular fee agreements.
Under CA: All fee agreements over 1K must be in writing unless: client is a corporation, the agreement was made during an emergency, client waives the writing requirement in writing, or the services are for a previous client with similar services in which can be implied.
Contingency Fees
A contingency fee agreement is one in which the fee is dependent on the outcome of the matter (not permitted in criminal or domestic relations cases). Contingency fee agreements must: be in writing, signed by client [CA – requires the agreement to be signed by both lawyer and client with each having a copy], state the method by which the fee is to be determined, including percentages in the event of a settlement, trial, or appeal, state litigation and other expenses to be deducted from the recovery, and state whether such expenses will be deducted before or after the contingent fee is calculated [CA – look at how the disbursements and costs will affect the contingency fee and client’s recovery and if the client will have to pay any related matters not covered by the agreement].
Fee Splitting and Sharing
ABA: WRAP
CA: WIC
Under ABA, division of fees between lawyers who are not in the same firm may be made only if: division is proportionate to the services performed by each lawyer, or each lawyer assumes joint responsibility for the representation; client agrees to the division and consents in writing; and the total fee is reasonable.
Under CA, division of fees between lawyers who are not in the same firm may be made only if the lawyers: enter into a written agreement to divide the fee; client consents in writing after full written disclosure that the fees will be divided along with the identity of the lawyers and terms of the division; and the total fee is not increased simply because of the division of fees.
*Fee sharing with non-lawyers is NOT permitted.
Referral Fees
A reciprocal fee agreement between lawyers is permissible if it is not exclusive and the client is informed of the agreement. A lawyer shall not give anything of value to a person for recommending lawyer’s services unless it is a qualified referral service that has been approved by an appropriate regulatory authority.
Under CA, allows gifts for past recommendations that resulted in employment. Cannot give gift as consideration of future referral.
Duty of Competence
Lawyer shall represent client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. Lawyer can consult with another competent lawyer, acquire skills to become competent, or refer matter to a competent lawyer.
Under CA: A lawyer must not intentionally, recklessly, or repeatedly fails to provide competent representation. Duty to act competently includes: mental, physical, and emotion ability.
Duty of Diligence
Under ABA: A lawyer shall act with reasonable diligence and promptness in representing client.
Under CA: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing client.
Duty to Safekeeping Client’s Money
Lawyer shall hold property of clients, or third persons connected with a representation separate from lawyer’s own property with a representation separate from the lawyer’s own property in a client trust fund and not commingle funds.
Under ABA, when a lawyer receives funds in relation to client’s case, it must be kept in a client trust account, and the lawyer must promptly notify their clients when funds are received.
Under CA, the lawyer must notify client as to any third parties to whom the lawyer owes a legal duty to, and that the lawyer maintain the client trust account in CA unless client provides written consent to maintain it elsewhere.
Duty to Safekeeping Client’s Physical Property
Lawyer shall hold a client’s or third party’s physical property that is connected with lawyer’s representation: separate from lawyer’s own property; in a safe space with a label identifying the property; and maintain a journal of the property.
Advance Payments
Under ABA, lawyer shall deposit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by lawyer only as fees are earned or expenses incurred.
Under CA, a flat fee paid in advance may be deposited in lawyer’s operating account if the lawyer discloses to client in writing that the client can require the fees to be deposited in a trust account until earned and the client is entitled to a refund of any amount not earned. If fee exceeds $1,000, the client’s agreement to deposit the flat fee in lawyer’s operating account needs to be in writing and signed by the client.
Other Fee Issues
Accounting: Lawyer must maintain records of all accounts for 5 years.
Prompt Payment: Lawyer must promptly pay client any funds they are entitled to along with a full accounting. But if there is a contingency fee agreement, lawyer may hold back the funds they reasonably believe they are due.
Fee Dispute With Client: Lawyer must send any money that is not in dispute and leave disputed portion in trust account pending dispute resolution.
- In CA, clients have mandatory fee arbitration for fee disputes.
Mandatory Withdrawal
Lawyer shall withdraw from representation when: the representation will result in a violation of the rules of professional conduct; or lawyer’s mental or physical condition materially impairs lawyer’s ability to represent client; or lawyer is discharged.
Under CA, lawyer knows or reasonably should know that the client is bringing an action without probable cause or to harass or maliciously injure a person.
Permissive Withdrawal
ABA and CA Rules – Lawyer may withdraw from representation when: client insists on action involving lawyer’s services that is fraudulent or criminal (ABA – lawyer reasonably believes it is); or client has used lawyer’s services to perpetrate a crime or fraud (CA – L reasonably believed it was a crime or fraud); client fails substantially to fulfill an obligation to lawyer regarding lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled; or the representation has been rendered unreasonably difficult by client; or other good cause exists.
ABA Only – withdrawal can be accomplished without material adverse effect on the interests of client, client insists upon taking action the lawyer considers repugnant or with which lawyer has a fundamental disagreement, representation will result in an unreasonable financial burden on the lawyer.
CA Only – client insists on presenting claims or defenses that cannot be supported by good faith; lawyer is unable to work with co-counsel, client knowingly and freely assents to the termination, lawyer’s mental and physical condition make it difficult to continue, or a continuation is likely to result in a violation of the CA PR rules.
Duties to Client Upon Withdrawal
Provide client with reasonable notice to allow time to seek other counsel, surrender papers and property, and refund any advance payments not yet earned.
