Duties to Clients Flashcards
Define **competence **under the MR.
Competence requires that a lawyer have the legal knowledge, skill, thoroughness, and preparation reasonably necessary to represent the client.
An attorney is in violation of the duty of competence in CA if they act with which states of mind? (Think criminal mens rea)
L may not intentionally, repeatedly, recklessly, or with gross negligence fail to perform legal services with competence.
True or false: In CA, competence includes a duty to supervise work of subordinate L and non-L employees.
True
How can an attorney gain competency? (MR/CA)
By 1) associating with a lawyer reasonably believed to be competent, OR 2) acquiring sufficient learning and skill before performance without undue expense or delay.
True or false: A lawyer may not advise or assist in a true emergency (in which it is impractical to contact another L). (MR/CA)
False. L may assist to the extent reasonably necessary.
Define “reasonable diligence” under the CA rules.
Reasonable diligence is commitment and dedication to C’s interests.
True or false: Under the MR, L must act with “reasonable diligence and promptness” in representing C.
True
An attorney is in violation of the duty of diligence in CA if they act with which states of mind? (Think criminal mens rea)
L may not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing C.
A lawyer may not accept or continue representation of a client if: (2 MR, 3rd CA)
1) The representation is directly adverse to another C’s interests (actual COI)
2) There is a “significant risk” that representation of C will be materially limited; OR
3) (CA) L has legal, business, financial, professional, or personal relationship with party/witness in the same matter
How can a L override a conflict involving the duty of loyalty? (ABA rules)
1) Obtain informed written consent (IWC) from Cs
2) L reasonably believes that they can competently and diligently represent C
How can a L override a conflict involving the duty of loyalty in CA?
Obtain IWC for clients. (No additional belief necessary.)
What is a concurrent conflict of interest (COI)
One where an attorney is representing joint clients.
How can an attorney resolve a concurrent COI?
1) L must believe they can competently and diligently represent both Cs
2) Each affected client gives IWC
True or false: An attorney can represent joint clients with potentially adverse interests.
True (provided L believes they can competently and diligently represent them, and both clients give IWC)
True or false: An imputed disqualification is a conflict of interest disqualifying the entire firm.
True
What types of disqualifications are not imputed to a lawyer’s firm? (3)
1) COI due to L’s personal interest
2) L screen from participation in subject matter of former representation
3) L leaving the firm
How can a lawyer enter into a business transaction with a client?
1) Ensure terms are fair and reasonable to C and are fully disclosed in writing
2) C advised in writing to seek counsel; and
3) C gives informed consent, confirmed in writing
T/F: A lawyer must receive IWC from a client to enter into a business transaction with them.
False. L must get informed consent, confirmed in writing.
Can a lawyer induce or solicit a gift from a client?
No.
T/F: If a lawyer is related to a client, they can prepare an instrument giving themselves a gift.
True
Can a lawyer have a sexual relationship with a client?
No, unless the relationship already existed before the attorney/client relationship.
T/F: An attorney’s sexual relationship with a client is imputed to the firm.
False.
T/F: Under the CA rules, an attorney can retain their spouse or domestic partner as a client even if doing so would otherwise violate the CA ethical rules.
True
If the client is an organization, who must the lawyer avoid having a sexual relationship with?
Any constituent of the org who supervises, directs, or regularly consults with L concerning the org’s legal matters.
Can a lawyer have a lien securing their fees or contingency fee in a client’s property?
YES under MR
NO under CA
In which two situations can a lawyer make a loan to a client? (2 in MR, 3 in CA)
1) Advancing litigation expenses
2) Paying litigation expenses for an indigent client
2) (CA) L may lend C money for any purpose, provided C gives written promise to repay
When must a lawyer give a written disclosure to a new client regarding a former client?
If the relationship with a former client will “substantially affect” the relationship with the new client
Substantially affect = law/facts overlap, or confidences of one would help another.
Fill in the blank: Fees cannot be ___ (MR), ___ (CA)
“Unreasonable” (MR)
“Illegal or unconscionable” (CA)
What are the factors involved in evaluating legal fees under the MR? (5)
1) Novelty and difficulty of legal issues
2) Time limitation
3) Nature of relationship with client
4) Experience
5) Contingency fee structure
What are the factors involved in evaluating legal fees under the CA rules? (3)
1) Amount in proportion to value of services
2) Relative sophistication of attorney and client
3) Client’s informed consent to fee
Must fee agreements be in writing? (MR)
No. They are preferred, except for regularly represented clients with the same rate.
True or false: Under the CA rules, a fee agreement in writing for non-contingency cases is required only if the expenses are reasonably foreseeable to be in excess of >$1K.
True
True or false: Contingency fees must be in writing under both sets of rules.
True
Under both sets of rules, when are contingency fees not permitted?
1) Criminal cases
2) Domestic relations cases (ex. alimony/divorce)
On what three conditions can a lawyer take compensation from a non-client?
1) 3P does not interfere with independent/professional judgment or with L-C relationship
2) C info kept confidential
3) C gives informed consent (CA: informed WRITTEN consent)
May a lawyer recover unpaid fees if fired by a client?
Yes, if L was on retainer
True or false: Referral fees are permitted under the CA rules.
True, if:
1) written client consent is given and
2) total fee not increased
May a lawyer take a referral fee under the MR?
No
What are the conditions required for a lawyer to ethically split fees?
1) Must only happen between lawyers
2) Client must agree in writing
3) Fee proportional to work done by each lawyer; and
4) Total fee is overall reasonable
What is a true retainer under the CA rules?
A non-refundable fee that C agrees to in writing in order to ensure L’s availability to C
May a client elect arbitration of dispute of L’s fees under CA rules?
Yes, unless C agreed in writing to a mandatory arbitration
What must a lawyer do to safekeep client property?
Keep C funds in separate trust account. Any disputed portions must remain in the trust account
What are the exceptions to the rule to separate L/C funds?
1) Commingling permitted to the extent reasonably necessary to pay bank charges
2) Advance flat fee may be deposited in operating account under certain conditions (CA ONLY)
What requirements must be met in order for a client to properly deposit an advance flat fee in an operating account? (CA ONLY)
Written disclosure that C has right to
1) require flat fee be deposited in trust account until earned
2) refund of unearned amount
3) If flat fee > $1k, agreement and notice to deposit are written and signed by C
What are the exceptions to the duty of confidentiality under the MR? (7)
1) To prevent death or serious bodily harm
2) To prevent crime-fraud likely to cause substantial financial harm
3) To get ethics advice
4) When compelled by court/law/ethics rules
5) With informed consent from C
6) Suit v. C
7) To collect fees
What are the exceptions to the duty of confidentiality under the CA rules? (5)
1) May reveal to extent reasonably necessary after dissuading C and informing C that info can be revealed
2) Compelled by court/law rules
3) informed consent by C
4) Suit v. C
5) Collect fees
Fill in the blank: When an L represents an organization, the __ is the client.
organization
Fill in the blank: When L knows that the actions of a rogue officer/employee is likely to result in ___ ___ to the org, L must proceed as is ___ ___ in the best interests of the org.
substantial injury; reasonably necessary
Under the MR, what must an L representing an organization do when faced with a rogue employee?
Report up the chain of command up to the highest level (board of directors)
If this fails, and there is the risk of substantial harm to the org, L may reveal info outside to the extent necessary
Under the CA rules, what must an L do when faced with a rogue employee?
Urge rogue employee to reconsider while explaining likely consequences.
L must not violate duty of confidentiality and must withdraw from representation if urging fails
When representing an organization and dealing with org’s constituents, L must
Explain C’s adverse interest if they reasonably should know that their interests are adverse to the client organization.
T/F: L must obtain consent of org’s counsel before communicating with a constituent of the org.
True
Fill in the blank: Under the duty to communicate, L must communicate with and keep C ___ ____ of all ___ ___ in representation.
reasonably informed; significant developments
What must an L do if a settlement offer is made?
Communicate offer to all Cs and get agreement (including division of settlement for joint clients)
Fill in the blank: L must abide by C’s decisions regarding the ___ of representation and reasonably consult with C as to the ___ pursued.
objectives; means
True or false: L must abide by C’s decision on whether to settle.
True
What client decisions in criminal cases must a lawyer abide by?
What plea bargain to enter, whether C will testify, whether to waive jury trial
May a lawyer limit the scope of representation?
Yes, if reasonable under the circumstances and client gives informed consent
Can a lawyer accept employment if they know/should know the suit is frivolous?
No
Can an L advise a client as to the illegality of an action?
No. They can explain what the violation of a law but cannot advise as to a course of action.
When is termination mandatory under the MR?
1) If representation will result in an ethical/legal violation
2) L’s mental/physical condition materially impairs the ability to represent C
3) L is discharged by C
When is termination mandatory under the CA rules?
1) If representation will result in an ethical/legal violation
2) L’s physical/mental condition renders it unreasonably difficult to carry out representation effectively
3) L is discharged by C
4) frivolous litigation
When is withdrawal permissive under the MR?
1) If C insists on taking action L considers repugnant/has a fundamental disagreement with
2) insists on pursuing criminal/fraudulent action
3) representation will be unreasonably difficult
4) C freely agrees to termination
5) Other good cause
When is withdrawal permitted under the CA rules?
1) If C insists on taking action L considers repugnant/has a fundamental disagreement with
2) insists on pursuing criminal/fraudulent action
3) representation will be unreasonably difficult
4) C freely agrees to termination
5) C insists on action not warranted under existing law
6) Continued representation likely to result in a violation of CA rules
7) Other good cause
Do you need court permission if terminating/withdrawing from representation?
Yes
What are the duties of a withdrawing lawyer? (3)
1) Notice and opportunity to get other counsel
2) Return unearned fees
3) Return client files
When may a lawyer limit malpractice liability under the MR?
If C independently represented in the agreement
Must a C seek independent counsel before settling with L?
No, but they must be given written notice and a reasonable opportunity to seek counsel
Fill in the blank: Under the CA rules, a criminal defendant who sues a lawyer for malpractice must make a ___ ___ of ___ ___
colorable claim; actual innocence
Under the CA rules, may an intended beneficiary known to L hold liable for malpractice?
Yes
