Duties; Duties Owned to Client: Confidentiality; Conflicts of Int

Question 1

Duties owed to Client

Answer 1

1. Confidentiality
2. Loyalty
3. Financial Responsibility
4. Competence
5. and other reasonable things

Question 2

Entities other than your Client:

Answer 2

1. Court
2. Adversaries
3. Legal Profession
4. Third Parties
5. Public

Question 3

Duties owed to entitites other than your client:

Answer 3

1. Candor/Truthfulness
2. Fairness
3. Dignity/Decorum
4. and other reasonable things

Question 4

THE DUTY OF CONFIDENTIALITY TO YOUR CLIENT
General rule:

Answer 4

Don’t reveal anything related to the representation of a client or use that information against her without her consent.

Question 5

Scope of the duty of confidentialy owed to a client:

Answer 5

The duty of confidentiality applies regardless, whether the
client requested it be kept “confidential” or whether itsm revelation might harm or embarrass the client.

Question 6

What should an attorney do to keep his client’s information confidential?

Answer 6

Use reasonable electronic security to prevent inadvertent access to or disclosure of client confidences.

Question 7

When does the duty of confidentiality to a client attach and how long does it run?

Answer 7

• It can attach before a lawyer-client relationship is formed, or even if none was formed.
• Once attached, your duty of confidentiality continues, even after formal representation ends, and even after death!

Question 8

Distinguish Attorney-Client Privelege from Confidentiality:

Answer 8

• Attorney-Client privilege, the overlapping, but narrower evidence rule that allows the client to prevent you from testifying about confidential communications from her to you.
• Condfidentiality is broader: It applies regardless of the source of the information, to anything not generally known, and to disclosures beyond the representation that could reasonably lead to information about it.

Question 9

Exceptions to Duty of Confidentiality

Answer 9

1. consent
2. defending yourself
3. If compelled by final court order, law, or other ethical duties.

Question 10

Consent exception to confidentiality:

Answer 10

• if the client consent, you may reveal otherwise confidential information.
• You also have Implied consent to reveal what’s necessary to render your legal services.

Question 11

When may you reveal confidential client information under the exception of defending yourself?

Answer 11

Your client

1. sues you for malpractice,
2. brings disciplinary actions against you,
3. and refuses to pay you, forcing you to sue him for your fees.

All of these circumstances, as well as seeking an ethics opinion, fall into the exception for revealing information necessary.

Question 12

What client information may you disclose when moving to a new law firm?

Answer 12

you may disclose without client consent non-privileged, minimal information for a conflicts check when moving to a new law firm.

Question 13

Your duty to uphold the law allows revelations to prevent:

Answer 13

1. Death or substantial bodily harm.
2. Fraud or crimes causing financial injury.

Question 14

In CA, what shall a lawyer do when the client threatens death or serious bodily harm:

Answer 14

In CA you must first, if reasonable in the circumstances,

1. make a good-faith effort to persuade your client not to commit the act, and
2. inform the client of your decision to reveal his confidences.

Question 15

ABA vs CA on disclosing confidential information to prevent Fraud or crimes causing financial injury:

Answer 15

• ABA: You may reveal client’s confidential information if the client is using your services to commit the crime and the disclosure would prevent or mitigate substantial financial loss
• CA: No financial exceptions

Question 16

THE DUTY OF LOYALTY TO YOUR CLIENT: CONFLICTS OF INTEREST - The black letter law:

Answer 16

You have a duty of loyalty to your client. If an interest of another client, yourself, or a third party materially limits or is adverse to representation, you have a conflict of interest

Question 17

What type of conflicts should you discuss?

Answer 17

1. potential
2. and actual

Question 18

CA on potential and actual conflicts:

Answer 18

CA strictly requires consent for a potential conflict and an additional disclosure and consent if it ripens to an actual
conflict.

Question 19

Ignorance of a conflict…

Answer 19

is no excuse, unless it arises from short-term legal services under a court, agency, or non-profit program.

Question 20

What’s “imputed disqualification”?

Answer 20

any group of lawyers that work together closely or share responsibilities share each others’ conflicts are imputed, e.g., private firms or corporate law departments.

Question 21

ABA vs CA Exceptions to Imputed Conflicts

Answer 21

• ABA: If a colleague’s previous government service or work for adverse parties at a previous firm conflicts her out of specific work, you may still be allowed to take that work with safeguards such as screening the colleague with the conflict behind an “ethical wall”
• CA: CA does not impute purely personal conflicts to
  colleagues, and disqualifies, but does not discipline, a lawyer for imputed conflicts.

Question 22

ABA: conflicts MAY be tolerated if:

+ CA Caveats

Answer 22

A case-by-case factual analysis establishes 3 elements:

1. You reasonably believe you can represent everyone effectively
2. you inform each affected client; and
   
   • If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible
   • CA does not require the belief be objectively reasonable
3. The client consents, confirmed in writing
   
   • Your writing to the client memorializing her oral consent is sufficient for the ABA.
   • CA requires the client consent itself be in writing, unless the conflicts are only personal to you, in which case only your written disclosure, and no client consent, is required.

Question 23

Conflicts between or among Clients situations:

Answer 23

1. Opposite sides in the same proceeding before a tribunal.
2. Opposing a current client in another matter.
3. Two clients with inconsistent positions.
4. Representing multiple clients in the same matter raises significant risks that your service for one may become materially limited as a result of the others’ interest.
5. New clients in matters related to former clients’.
6. Former government lawyer that moves to private practice.

Question 24

Rule for when your clients are Opposite sides in the same proceeding before a tribunal.

Answer 24

Because of imputed disqualification, you cannot represent opposing parties in the same matter

Question 25

ABA Rule and CA Exception for when your clients are Opposing a current client in another matter:

Answer 25

• ABA: A representation adverse to a current client
  in a different matter requires all clients’ consent
• CA Statutory exception: there is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where the insurer’s interest in each matter is only as an indemnity provider

Question 26

Rule for when you have Two clients with inconsistent positions

Answer 26

• Example: You need to argue both for and against the Managed Care Act in two different appeals.
• It is ok if the positions do not create a conflict
• but if either client would be disadvantaged you must obtain consent.

Question 27

Rule for when Representing multiple clients in the same matter raises significant risks that your service for one may become materially limited as a result of the others’ interest.

Answer 27

• These potential conflicts generally require disclosure and consent. Examples are representing:
  
  • Both spouses in an uncontested divorce or drafting wills.
  • A corporation and any of its directors, officers, shareholders, or employees;
• Best remedy for this actual conflict in this situation:
  
  • Withdraw from both and advise them to get seperate counsel
  • You must withdraw from at least 1, stay with the one with which you have the confidential info

Question 28

Rule for New clients in matters related to former clients’.

Answer 28

• If confidential information from a former client might be relevant to a new client’s matter, you may be violating your continuing duty of confidentiality and your duty of loyalty to your former client
• Ask: Do the representations overlap in function, scope or information?
• Rule: You cannot take on a new client with interests materially adverse to a former client without the former’s consent
  
  • likely not a problem if you are a limited partner
• Also, Using non-public confidential information against a former client is unreasonable

Question 29

Rule for Former government lawyer that moves to private practice.

Answer 29

If you were a government lawyer who worked “personally and substantially” on a “matter,” the ABA bars you from
working on that same “matter” in later private practice without the government’s consent.

Question 30

For the former government employee that moves to private practice rule, what is a Matter?

Answer 30

a specific dispute between specific people over specific issues.

• writing regulations is not a matter

Question 31

Imputed disqualification, for former government employees who moved to private practice, on their colleages

Answer 31

three ABA conditions for an exception to imputed disqualification of colleagues of former government lawyers: All 3 must be met

1. you are screended off; and
2. You do not share any part of the fee in the matter (pre-arranged salaries or partnership shares are OK); and
3. your government employer is informed

Question 32

What is a 3rd party neutral in a case?

Answer 32

Judges, clerks, arbitrators

Question 33

Third-party neutrals and former government employees.
What if you were a 3rd party nuetral (Judges, clerks, arbitrators) on a case involving your former government employer?

CA vs ABA

Answer 33

• ABA: nuetral needs consent of all parties
• CA: explicity disqualifies a prosecutor in a case from later working on the defense side of that case.
  
  • CA is silent on civil cases, but case law allows screening like the ABA.

Question 34

Conflicts between lawyer and client

Answer 34

1. Gifts to the Lawyer
2. Limiting Liability
3. Publication Rights Contract
4. Use of Information
5. Loans to Your CLient
6. Business transactions or adverse interests
7. Trial counsel as a necessary witness
8. Close relationships with your adversary’s lawyer

Question 35

Rule for Gifts to the lawyer.

Answer 35

You must not solicit a substantial gift from a client, or draft a legal instrument for a client who is not your close relative, if it provides a substantial gift to you or your relative

Question 36

Rule for Limited Liability for Conflicts between Lawyer and CLient and CA Caveat

Answer 36

You cannot limit your client’s right to report you for professional misconduct or to cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless, under ABA Rules, the client is independently represented in making the agreement.

• CA bars malpractice limits.
  
  • —If a client makes a malpractice claim against you, you can only settle after written advice to the client to consult an outside lawyer first.

Question 37

Publication rights contracts: CA v ABA

Halfway through his criminal trial, Defendant offers to sell you rights to his story to raise some needed cash. Can you accept?

Answer 37

• ABA: not before representation has ended
• CA: Maybe - CA case law discourages contracts during proceedings, but allows them if the judge is satisfied that the client clearly understands and consents.

Question 38

Use of Information Rule

Answer 38

Use of confidential information to a client’s disadvantage,
without her consent, violates the duties of both loyalty and confidentiality.

Question 39

Loans to Your Client:ABA v CA

Answer 39

• The ABA forbids all financial assistance, except litigation expenses for an indigent client and the advance of litigation expenses in Contingent Fee Cases
• CA forbids promises to pay a prospective client’s debts, but allows loans to a client in all matters for any purpose with a written loan agreement

Question 40

Business transactions or adverse interests with the client rule

Answer 40

You may enter into business with a client or obtain an
interest adverse to hers only if:

1. the terms are Fair to the client,
2. Disclosed in understandable writing,
3. the client is advised to consult an Outside lawyer, and
4. your client provides Consent in writing.

Question 41

Business transactions or adverse interests with the client rule for Board Service

Answer 41

Service on the Board of Directors of a non-profit legal services organization is allowed. There is also no bar to sitting on the Board of a corporate client, but it is now discouraged, because it is likely to compromise loyalty and confidentiality

Question 42

Trial counsel as a necessary witness.

ABA & CA caveat

Answer 42

• The ABA Rules bar you from appearing ascounsel and witness in the same trial unless:
  
  1. your testimony is uncontested or
  2. about your legal services rendered or
  3. if your distinctive value to the case means withdrawal would impose substantial hardship on the client. If testimony might prejudice the client, consent is required, and the conflict is imputed to colleagues
• CA is less restrictive:
  
  • you may testify in any bench trial, and—if the client consents—in a jury trial

Question 43

Close relationships with your adversary’s lawyer.

CA v ABA

Answer 43

• ABA: You can’t oppose a party represented by your relative without client consent.
  
  • “Close relations” include immediate family: i.e., your parent, child, sibling, and spouse
• CA explicitly recognizes other “intimates.” As a purely personal conflict, it requires only written disclosure. CA also requires disclosure of any legal, business, or personal relationship with any party or witness
  
  • This purely personal conflict is not imputed to colleagues, nor is a sexual relationship with the client

Question 44

Conflicts due to Third Party interference. General Rules

Answer 44

• Your sole duty is to your client, not to any 3rd party.
• Payment for your services from a third party is permitted only with informed client consent. Confidences cannot be shared.

Question 45

Conflicts due to Third Party interference - Organizational Clients

Answer 45

A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.

Question 46

Conflicts due to Third Party interference - Organizational Clients - Federal laws govern securities lawyers: You are in-house counsel at Reron. You discover the Chief Operating Officer materially violated securities laws. You Must:

Answer 46

• Report the matter to the CEO or Chief Legal Counsel. If they do not respond, you must go to the highest authority in the company.
• if you reasonably believe it necessary to prevent fraud, perjury or substantial injury to the organization or investors, or to rectify financial injury from a violation that involved your services, then you may disclose confidential information to the Securities Exchange Commission without client consent.

Question 47

Conflicts due to Third Party interference - Organizational Clients - Federal laws govern securities lawyers: CA v ABA

Answer 47

• ABA Rules similarly mandate “reporting up,” and permit limited “reporting
  out.”
• CA’s more restrictive confidentiality rules are preempted by the federal
  securities law.