Duties to Client Flashcards
Lawyer duties to Client
CCCC STUD COMMUNICATE with CLIENT act COMPETENTLY do not reveal CONFIDENCES avoid CONFLICTS of interest render CANDID advice SAFEGUARD client's money and property TERMINATE/withdraw properly act with reasonable DILIGENCE
COMMUNICATE with client
Keep client informed, respond prompty to reasonable requests and explain all matters to client so that client can make an informed decision; Lawyer must prompty inform client of any written settlement offer.
Attorney Duties to Client
Confidentiality Loyalty Financial Responsibility and other reasonable things (Clients Love Fierce Counsel)
Attorney Duties to: Court; Adversaries (parties & their counsel);Legal Profession; Third parties; Public
Candor/Truthfulness
Fairness
Dignity/Decorum
…& other reasonable things
Duty of Confidentiality
A. General rule: Don’t reveal anything “ related to the representation” of a client without her consent. The rationale is to maximize trust and therefore candor, allowing the adversarial system to work.
Scope of Duty of Confidentiality
Scope. The duty of confidentiality applies regardless of whether the client requested it be kept “confidential” or whether its revelation might harm or embarrass the client.
How long does Duty of Confidentiality last?
Once attached, your duty of confidentiality continues, even after formal representation ends, and even after death!
Exceptions to Duty of Confidentiality
- Informed Consent of Client
- Malpractice defense
- If compelled by final court order, law, or other ethical duties (i.e. Conflicts check)
Your duty to uphold the law allows revelations to prevent:
a. Death or substantial bodily harm.
b. Fraud or financial injury (NOT in CA)
Attorney requirements to reveal confidences in California
if reasonable in the circumstances, (i) make a good faith effort to persuade the client not to commit the act, and (ii) inform the client of your decision to reveal his confidences.
Duty of Loyalty
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 loyal representation, you have a conflict of interest.
You are ordinarily responsible even if you are ignorant about a conflict. The exception is for short-term legal services under a court, agency, or non-profit program, where you are responsible only if you actually knew of a conflict.
“Imputed Disqualification”
means any group of lawyers that work together closely or share responsibilities share each others’ conflicts, e.g., private firms or corporate law departments. *CA disqualifies, but does not discipline, a lawyer for imputed conflicts.
Exception to Imputed Disqualification
—Exceptions: When one lawyer’s conflicts arise from previous government service or work for adverse parties at a previous firm, representation by her colleagues may be allowed with safeguards such as screening. *CA also relaxes imputation of conflicts that are purely personal to the lawyer and for short-term legal services under non-profit or court programs.
Remedies for a conflict
Refuse to take the case; advise multiple clients to get separate counsel; withdraw
An “Ethical Wall” may screen off the lawyer with a conflict from colleagues to cure their imputed disqualifications. Client consent may also be required.
Approach for Possible Conflicts of Interest
a. You reasonably believe you can represent everyone effectively despite the potential or actual conflict (*CA does not require the belief be objectively reasonable); and
b. You inform each affected client. If your duty of confidentiality prevents you from fully disclosing information the client needs to understand the conflict, then consent may not be possible; and
c. The client consents, confirmed in writing . *CA allows certain conflicts that are personal to the lawyer to be merely disclosed in writing to the client.
d. Some imputed conflicts will also require screening to be reasonable.
Conflicts between or among Clients: Opposite sides of the same matter.
Never. Imputed disqualification means you represent current client. If Clients are in direct conflict, it is unreasonable to represent both.
Conflicts between or among Clients: Opposing a current client in another matter
A representation adverse to a current client in another 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
Conflicts between or among Clients: Two clients with inconsistent positions.
Positions do not create conflict, but if either would be disadvantaged you must obtain consent.
Conflicts between or among Clients: Representing multiple clients in the same matter—or acting as an intermediary.
raises significant risks that your service may become materially limited as a result the others’ interest. These potential conflicts generally require disclosure and consent. Examples are representing:
—A corporation and any of its directors, officers, employees, or shareholders;
—Both spouses in an uncontested divorce or drafting wills.
What will result if attorney represents two criminal defendants with conflicting interests
In criminal cases, dual representation may also impede the 6th Amendment’s guarantee of “effective assistance of counsel.”
New clients in matters related to former clients’
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. Rule: You cannot take on a new client with interests materially adverse to a former client without the former’s consent.
When will imputed disqualification not follow an attorney to new firm
At your new firm, your conflicts will not extend to your new colleagues if you:
(1) are timely and effectively screened, (2) receive no direct part of the fee, and
(3) your former client receives notice and (4) periodic certifications of compliance with these conditions.
