duties to client

Question 1

concurrent conflict of interest

Answer 1

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

Question 2

CA concurrent conflict of interest

Answer 2

• 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

Question 3

imputed conflicts

Answer 3

if a lawyer has a conflict of interest, it is imputed to all members of his firm.

Question 4

imputed conflict: former client conflicts from lawyer’s old firm carry over to a lawyer’s new firm?

Answer 4

• 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

Question 5

using information in a way that harms a client

Answer 5

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

Question 6

limiting malpractice liability

Answer 6

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

Question 7

lawyer conflict of interest: settling a claim for malpractice

Answer 7

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

Question 8

lawyer conflict of interest: proprietary interest in the cause of action

Answer 8

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

Question 9

lawyer conflict of interest: literary or media rights based on the representation

Answer 9

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

Question 10

lawyer conflict of interest: transaction with client or ownership/financial interest

Answer 10

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)

Question 11

former client conflict of interest

Answer 11

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

Question 12

conflicts where lawyer represents an organization

Answer 12

• 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

Question 13

what a lawyer must do when someone associated with the organization proposes action that may cause substantial injury to the organization

Answer 13

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

Question 14

SEC rules

Answer 14

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

Question 15

compensation from 3rd party

Answer 15

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

Question 16

lawyer personal conflict of interest: drafting a will/ document giving a lawyer a gift, soliciting a gift

Answer 16

-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

Question 17

government lawyer, judge, former law clerk to judge who moves to private firm conflict of interest- MPC

Answer 17

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

Question 18

duty to protect a client’s property

Answer 18

• 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

Question 19

duty of confidentiality

Answer 19

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

Question 20

CA exceptions to duty of confidentiality

Answer 20

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

Question 21

duty of competence

Answer 21

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

Question 22

mandatory withdrawal

Answer 22

• 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

Question 23

CA mandatory withdrawal

Answer 23

• 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

Question 24

permissive withdrawal

Answer 24

• 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

Question 25

lawyer must not withdraw if

Answer 25

court orders the lawyer to continue representation notwithstanding good cause for termination of the representation

Question 26

duty of loyalty

Answer 26

lawyer owes a duty of loyalty to client.

i.e. must not have COI

Question 27

duty of care

Answer 27

lawyer must use the care, skill, and judgment a reasonably prudent general practitioner would use in the circumstances

breach leads to malpractice, not discipline

Question 28

CA concurrent conflict of interest rule for representing an insurance co’s policyholder and suing the insurance company in another case

Answer 28

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

Question 29

two clients in different cases with conflicting positions

Answer 29

-usually does not pose an issue

unless 1 disadvantaged because creates precedent

Question 30

imputed conflicts- firm approached with new client who has a conflict w/ a former client of a lawyer who has since left the firm

Answer 30

an attorney remaining may represent unless:

i) matters substantially related or the same
ii) any remaining lawyer has confidential, material information

Question 31

CA rule for govt employees

Answer 31

CA only prevents a prosecutor from later serving as defense counsel

Question 32

lawyer personal conflict of interest: relatives

*CA difference

Answer 32

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

Question 33

lawyer conflict of interest: sexual relations with client

*CA difference

Answer 33

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

Question 34

financial duty to client: fee agreement

*CA difference

Answer 34

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

Question 35

financial duty to client: contingent fee agreement, when contingent fees permissible

*CA difference

Answer 35

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

Question 36

*financial duty to client: limits on fees

Answer 36

MPC: Fees must be reasonable. Factors:
Labor; novelty; difficulty; skill required; time required; result obtained; experience of lawyer

CA: fees must not be unconscionable

Question 37

if a lawyer who works on contingency is fired

Answer 37

he gets the reasonable value of his services if the client later wins the case

Question 38

financial duty to client: method of resolving disputes

*CA difference

Answer 38

MPC: arbitration
CA: arbitration if the client requests it

Question 39

financial duty: splitting fees with outside attorneys

*CA difference

Answer 39

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

Question 40

lawyer conflict of interest: rule for payment by 3rd party

Answer 40

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

Question 41

*financial duty: splitting w/ nonlawyers

Answer 41

MPC: no fee splitting with nonlawyers.

except- paying benefits owed to a lawyer to his heirs; paying salaries to nonlawyer employee

Question 42

partnership with nonlawyers

Answer 42

prohibited. can’t be partners, shareholders, officers

Question 43

law related services

Answer 43

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

Question 44

duty to protect client’s property

*CA difference

Answer 44

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

Question 45

duty to disclose professional insurance

Answer 45

ABA suspends you administratively for not having

CA requires you to disclose lack of insurance to clients who hire you for >4 hours work

Question 46

accepting representation

Answer 46

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

Question 47

scope of rep

Answer 47

client decides whether to settle, whether to testify in a criminal case
lawyer makes strategic decisions

Question 48

duty to communicate

Answer 48

• 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