duties to client Flashcards
concurrent conflict of interest
a) representation of a client will be directly adverse to the interests of another client
b) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of another client, former client, or third person
lawyer may obtain informed consent if:
- lawyer reasonably believes he can competently and diligently represent each affected client
- representation is not prohibited by law
- representation doesn’t involve the client asserting a claim against another client the lawyer represents
CA concurrent conflict of interest
- lawyer may represent if the lawyer believes (need not be reas.) he can competently and diligently represent both clients;
- if conflict arises out of prior relationship or lawyer’s personal interest: must give written disclosure
- if conflict is from another current client: informed consent
but if former client had the conflict and lawyer would be using confidential info in a matter where the new client’s interests are adverse, need informed consent
imputed conflicts
if a lawyer has a conflict of interest, it is imputed to all members of his firm.
imputed conflict: former client conflicts from lawyer’s old firm carry over to a lawyer’s new firm?
- the lawyer can be timely screened from participation
- the lawyer must not be apportioned a fee
- written notice must be promptly given to any affected former client
- certifications of compliance with the screening procedures are provided to the client at reasonable intervals
using information in a way that harms a client
an attorney may not use information relating to the representation of a client to the disadvantage of the client without the client’s informed consent
limiting malpractice liability
a lawyer may not limit his malpractice liability unless the client is independently represented in making the agreement.
CA rule: attorney may never limit malpractice liability
lawyer conflict of interest: settling a claim for malpractice
a lawyer must not settle a claim for malpractice liability with an unrepresented client or former client without advising the person in writing that independent counsel is desirable and giving that person a reasonable chance to consult with independent counsel
lawyer conflict of interest: proprietary interest in the cause of action
lawyer may not acquire a proprietary interest in a client’s cause of action except:
- lawyer MAY acquire a lien authorized by law to secure his fee/expenses
- MAY contract with a client for a reasonable contingent fee in a civil case
lawyer conflict of interest: literary or media rights based on the representation
a lawyer may not make or negotiate an agreement giving the lawyer literary or media rights to an account based in substantial part on information relating to the representation UNTIL AFTER REP
CA: requires trial judge to ensure that the client fully understands the conflict of interest. if he does, then he can waive the conflict and have lawyer continue to represent him
lawyer conflict of interest: transaction with client or ownership/financial interest
lawyer may not enter into a business transaction with a client, or
acquire an ownership or financial interest that is adverse to the client unless:
-Fair and reasonable to the client
-Disclosed fully to the client in a writing that can be reasonably understood by him
-Opportunity to seek the advice of independent legal counsel & told doing so is desirable
-Client’s informed consent given & he understands lawyer’s role in transaxn
(FDOC- first discuss over coffee)
former client conflict of interest
a lawyer who formerly represented a client in a matter may not thereafter represent another client
- in the same or a substantially related matter
- if that client’s interests are materially adverse to the former client
- unless the former client gives informed consent
relatedly, may not use confidential information to the disadvantage of the former client or reveal confidential information
conflicts where lawyer represents an organization
- a lawyer must explain the identity of the client when the lawyer knows the organization’s interests are adverse to the constituent of the organization that he is dealing with
- lawyer may represent a constituent subject to COI rules
what a lawyer must do when someone associated with the organization proposes action that may cause substantial injury to the organization
must report the action to a higher authority, and if necessary, to the highest authority
if highest authority fails to take appropriate action, may report to persons outside the organization
CA: may not disclose info to people outside the organization unless to prevent a CRIME or substantial BODILY harm
SEC rules
when lawyer’s client is materially violating securities law…
Must report UP
-lawyer must report the info to the CLO
if the CLO concludes a violation occurred, the CLO must make an appropriate response (remedy it, or make sure it doesn’t happen again)
-if CLO doesn’t get an appropriate response, lawyer MUST report to board of directors, audit committee, or committee of outside directors
May report OUT
- may report to SEC if reas. necessary to stop client from committing a violation that will cause substantial financial injury to the client or its investors
- rectify a financial injury if the lawyer’s services were used to further the violation
- prevent client from committing perjury on the SEC in an SEC matter
compensation from 3rd party
lawyer must not accept compensation unless:
- client gives informed consent
- there is no interference with lawyer’s professional judgment
- information relating to the representation is protected
lawyer personal conflict of interest: drafting a will/ document giving a lawyer a gift, soliciting a gift
-a lawyer must not solicit a substantial gift from a client
-must not prepare an instrument giving the lawyer or his relative a substantial gift from a client
(unless that person is also your relative)
INFORMED CONSENT DOES NOT EXCUSE
CA: can draft the instrument giving him a gift as long as he didn’t induce it
government lawyer, judge, former law clerk to judge who moves to private firm conflict of interest- MPC
a lawyer must not represent a client
- in connection with A MATTER
- in which the lawyer participated personally and substantially as a government officer or employee
- unless the appropriate government agency gives informed, written consent
matter = some kind of investigation or case, not drafting rules or legislation
new firm may screen the govt lawyer- must notify the govt agency
duty to protect a client’s property
- a lawyer must keep property of clients or 3rd parties separate from his own
- must keep record of client funds or property
- must keep client informed and deliver funds or other property to the client or a 3rd person entitled to receive it
- if lawyer is in possession of funds/property a 3rd person has a claim to, must keep the disputed property separate
duty of confidentiality
lawyer must not reveal information relating to the representation of the client
-applies even after representation ends
EXCEPTIONS
- MAY reveal when you reas. believe it will prevent substantial bodily harm or death
- client gives informed consent
- impliedly authorized to carry out representation
- necessary to prevent client from committing a crime or fraud likely to cause substantial financial loss IF client used lawyer’s services (ONLY MPC)
- necessary for lawyer to collect a fee
- necessary for the lawyer to assert a defense
- necessary to obtain confidential legal advice about lawyer’s duty to comply w/ ethical rules
- disclosure required by court order, statute, or ethics rules
CA exceptions to duty of confidentiality
A. compelled by law or court order
B. to collect an attorney’s fee
C. to enable a lawyer to defend himself against a claim of legal malpractice, ineffective assistance of counsel, or other wrongdoing
D. OPTIONAL to reveal to prevent the client from committing a crime that will cause substantial bodily injury or death
BUT FIRST:
1) make good faith effort to dissuade client
2) tell the client you will reveal
duty of competence
legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
I) knowledge- lawyer’s skill, training, experience, amt of time that can be devoted to learning an area he is unfamiliar with
subduties
a) must act with diligence and promptness in responding to a client
b) must keep client reasonably informed about status of the matter and respond to requests for info
mandatory withdrawal
- representation will result in violation of RPC or law
- lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client
- the lawyer is discharged
CA mandatory withdrawal
- lawyer knows or should know the client is acting without probable cause and to harass another person
- representation will result in violation of RPC
note: need not withdraw if violates the law
permissive withdrawal
- withdrawal can be accomplished without material adverse effect on the client’s interests
- client persists in a course of action involving the lawyer’s services that the lawyer believes is criminal or fraudulent
- client has used the lawyer’s services to commit a crime or fraud
- client insists upon a course of conduct lawyer finds repugnant or that the lawyer has a fundamental disagreement with
- client has failed to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless it is fulfilled
- unreasonable financial burden on the lawyer
- other good cause
CA: no withdrawal based on unreasonable financial burden, past crime/fraud, no material adverse effect
lawyer must not withdraw if
court orders the lawyer to continue representation notwithstanding good cause for termination of the representation
duty of loyalty
lawyer owes a duty of loyalty to client.
i.e. must not have COI
duty of care
lawyer must use the care, skill, and judgment a reasonably prudent general practitioner would use in the circumstances
breach leads to malpractice, not discipline
CA concurrent conflict of interest rule for representing an insurance co’s policyholder and suing the insurance company in another case
no conflict, as long as the insurance company’s interest in each case is just as an insurance provider.
ex: Mercury Insurance hires you to represent their driver. In a different case, you can be on the opposite side from Mercury Insurance and another one of their drivers
two clients in different cases with conflicting positions
-usually does not pose an issue
unless 1 disadvantaged because creates precedent
imputed conflicts- firm approached with new client who has a conflict w/ a former client of a lawyer who has since left the firm
an attorney remaining may represent unless:
i) matters substantially related or the same
ii) any remaining lawyer has confidential, material information
CA rule for govt employees
CA only prevents a prosecutor from later serving as defense counsel
lawyer personal conflict of interest: relatives
*CA difference
must not oppose a party represented by your close relative (brother, father, spouse)
INFORMED CONSENT MAY EXCUSE
CA has same rule but also adds “intimates” including roommates and people w/ close personal relationship to you
lawyer conflict of interest: sexual relations with client
*CA difference
Lawyer must not have sexual relationship with client. Consent/ lack of harm immaterial.
NO INFORMED CONSENT
CA: lawyer just can’t
i) demand sexual relations as a condition of rep;
ii) enter into sexual relations by coercion or undue influence;
iii) represent a client incompetently b/c of sexual relationship
financial duty to client: fee agreement
*CA difference
must state how fee is calculated
services covered
lawyer and client’s duties
CA: fee agmt must be written.
exceptions:
1) less than $1,000
2) corporate client
3) routine services for regular client
4) emergency situation
financial duty to client: contingent fee agreement, when contingent fees permissible
*CA difference
MPC allows in: all cases but divorce or crim
CA allows in: all cases, even divorce, so long as they don’t promote dissolution of marriage.
MPC- agreement must state:
- percentage to be paid to buyer
- what expenses to be deducted from recovery
- whether the percentage is deducted before or after expenses
CA: must also state how work not covered by contingency will be paid; lawyer’s fees negotiable
*financial duty to client: limits on fees
MPC: Fees must be reasonable. Factors:
Labor; novelty; difficulty; skill required; time required; result obtained; experience of lawyer
CA: fees must not be unconscionable
if a lawyer who works on contingency is fired
he gets the reasonable value of his services if the client later wins the case
financial duty to client: method of resolving disputes
*CA difference
MPC: arbitration
CA: arbitration if the client requests it
financial duty: splitting fees with outside attorneys
*CA difference
may not pay another attorney a fee for suggesting you.
attorney can only divide fees w/ outside atty if:
1) proportional to the work that person did
OR 2) other percent if that person assumes joint responsibility for the representation
may use a referral service
CA: allows referral fees if client knows & consents; total fee not unconscionable
lawyer conflict of interest: rule for payment by 3rd party
client gives informed consent
payor does not interfere w/ lawyer’s ind. judgm.
info relating to rep remains confidential
unethical to accept payment from 1 client who tries to use the fact he is paying to control others
*financial duty: splitting w/ nonlawyers
MPC: no fee splitting with nonlawyers.
except- paying benefits owed to a lawyer to his heirs; paying salaries to nonlawyer employee
partnership with nonlawyers
prohibited. can’t be partners, shareholders, officers
law related services
if you personally provide them in addition to your law practice, the legal rules apply to the law related services too.
if you provide law related services in a separate entity, must notify clients that the rules don’t apply
duty to protect client’s property
*CA difference
1) Must hold client’s property in lawyer’s possession separate from own property:
a) funds- separate account from personal
b) other property- mark as client’s and safeguard
2) advances must be put in client trust account
3) lawyer must keep records of funds and prop.
* CA- keep for 5 years
4) promptly deliver property or funds to the client or 3rd party
5) if client disputes fees owed to the lawyer, lawyer must keep that amt separate
duty to disclose professional insurance
ABA suspends you administratively for not having
CA requires you to disclose lack of insurance to clients who hire you for >4 hours work
accepting representation
lawyer is free to accept or refuse any case.
SHOULD however accept pro bono work, and needy people if only reason to refuse is selfish
MUST reject rep if it violates rule of ethics- ex: violating the duty of competence by not being in mental shape for it
scope of rep
client decides whether to settle, whether to testify in a criminal case
lawyer makes strategic decisions
duty to communicate
- a lawyer must keep a client reasonably informed about the status of a matter
- must explain a matter to the extent reasonably necessary to allow client to make informed decisions
