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CA Professional Responsibility > Duties to Clients > Flashcards

Duties to Clients Flashcards

1
Q

Define **competence **under the MR.

A

Competence requires that a lawyer have the legal knowledge, skill, thoroughness, and preparation reasonably necessary to represent the client.

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2
Q

An attorney is in violation of the duty of competence in CA if they act with which states of mind? (Think criminal mens rea)

A

L may not intentionally, repeatedly, recklessly, or with gross negligence fail to perform legal services with competence.

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3
Q

True or false: In CA, competence includes a duty to supervise work of subordinate L and non-L employees.

A

True

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4
Q

How can an attorney gain competency? (MR/CA)

A

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.

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5
Q

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)

A

False. L may assist to the extent reasonably necessary.

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6
Q

Define “reasonable diligence” under the CA rules.

A

Reasonable diligence is commitment and dedication to C’s interests.

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7
Q

True or false: Under the MR, L must act with “reasonable diligence and promptness” in representing C.

A

True

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8
Q

An attorney is in violation of the duty of diligence in CA if they act with which states of mind? (Think criminal mens rea)

A

L may not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing C.

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9
Q

A lawyer may not accept or continue representation of a client if: (2 MR, 3rd CA)

A

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

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10
Q

How can a L override a conflict involving the duty of loyalty? (ABA rules)

A

1) Obtain informed written consent (IWC) from Cs
2) L reasonably believes that they can competently and diligently represent C

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11
Q

How can a L override a conflict involving the duty of loyalty in CA?

A

Obtain IWC for clients. (No additional belief necessary.)

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12
Q

What is a concurrent conflict of interest (COI)

A

One where an attorney is representing joint clients.

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13
Q

How can an attorney resolve a concurrent COI?

A

1) L must believe they can competently and diligently represent both Cs
2) Each affected client gives IWC

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14
Q

True or false: An attorney can represent joint clients with potentially adverse interests.

A

True (provided L believes they can competently and diligently represent them, and both clients give IWC)

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15
Q

True or false: An imputed disqualification is a conflict of interest disqualifying the entire firm.

A

True

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16
Q

What types of disqualifications are not imputed to a lawyer’s firm? (3)

A

1) COI due to L’s personal interest
2) L screen from participation in subject matter of former representation
3) L leaving the firm

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17
Q

How can a lawyer enter into a business transaction with a client?

A

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

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18
Q

T/F: A lawyer must receive IWC from a client to enter into a business transaction with them.

A

False. L must get informed consent, confirmed in writing.

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19
Q

Can a lawyer induce or solicit a gift from a client?

A

No.

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20
Q

T/F: If a lawyer is related to a client, they can prepare an instrument giving themselves a gift.

A

True

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21
Q

Can a lawyer have a sexual relationship with a client?

A

No, unless the relationship already existed before the attorney/client relationship.

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22
Q

T/F: An attorney’s sexual relationship with a client is imputed to the firm.

A

False.

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23
Q

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.

A

True

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24
Q

If the client is an organization, who must the lawyer avoid having a sexual relationship with?

A

Any constituent of the org who supervises, directs, or regularly consults with L concerning the org’s legal matters.

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25
Q

Can a lawyer have a lien securing their fees or contingency fee in a client’s property?

A

YES under MR
NO under CA

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26
Q

In which two situations can a lawyer make a loan to a client? (2 in MR, 3 in CA)

A

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

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27
Q

When must a lawyer give a written disclosure to a new client regarding a former client?

A

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.

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28
Q

Fill in the blank: Fees cannot be ___ (MR), ___ (CA)

A

“Unreasonable” (MR)
“Illegal or unconscionable” (CA)

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29
Q

What are the factors involved in evaluating legal fees under the MR? (5)

A

1) Novelty and difficulty of legal issues
2) Time limitation
3) Nature of relationship with client
4) Experience
5) Contingency fee structure

30
Q

What are the factors involved in evaluating legal fees under the CA rules? (3)

A

1) Amount in proportion to value of services
2) Relative sophistication of attorney and client
3) Client’s informed consent to fee

31
Q

Must fee agreements be in writing? (MR)

A

No. They are preferred, except for regularly represented clients with the same rate.

32
Q

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.

A

True

33
Q

True or false: Contingency fees must be in writing under both sets of rules.

A

True

34
Q

Under both sets of rules, when are contingency fees not permitted?

A

1) Criminal cases
2) Domestic relations cases (ex. alimony/divorce)

35
Q

On what three conditions can a lawyer take compensation from a non-client?

A

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)

36
Q

May a lawyer recover unpaid fees if fired by a client?

A

Yes, if L was on retainer

37
Q

True or false: Referral fees are permitted under the CA rules.

A

True, if:
1) written client consent is given and
2) total fee not increased

38
Q

May a lawyer take a referral fee under the MR?

A

No

39
Q

What are the conditions required for a lawyer to ethically split fees?

A

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

40
Q

What is a true retainer under the CA rules?

A

A non-refundable fee that C agrees to in writing in order to ensure L’s availability to C

41
Q

May a client elect arbitration of dispute of L’s fees under CA rules?

A

Yes, unless C agreed in writing to a mandatory arbitration

42
Q

What must a lawyer do to safekeep client property?

A

Keep C funds in separate trust account. Any disputed portions must remain in the trust account

43
Q

What are the exceptions to the rule to separate L/C funds?

A

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)

44
Q

What requirements must be met in order for a client to properly deposit an advance flat fee in an operating account? (CA ONLY)

A

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

45
Q

What are the exceptions to the duty of confidentiality under the MR? (7)

A

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

46
Q

What are the exceptions to the duty of confidentiality under the CA rules? (5)

A

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

47
Q

Fill in the blank: When an L represents an organization, the __ is the client.

A

organization

48
Q

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.

A

substantial injury; reasonably necessary

49
Q

Under the MR, what must an L representing an organization do when faced with a rogue employee?

A

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

50
Q

Under the CA rules, what must an L do when faced with a rogue employee?

A

Urge rogue employee to reconsider while explaining likely consequences.

L must not violate duty of confidentiality and must withdraw from representation if urging fails

51
Q

When representing an organization and dealing with org’s constituents, L must

A

Explain C’s adverse interest if they reasonably should know that their interests are adverse to the client organization.

52
Q

T/F: L must obtain consent of org’s counsel before communicating with a constituent of the org.

A

True

53
Q

Fill in the blank: Under the duty to communicate, L must communicate with and keep C ___ ____ of all ___ ___ in representation.

A

reasonably informed; significant developments

54
Q

What must an L do if a settlement offer is made?

A

Communicate offer to all Cs and get agreement (including division of settlement for joint clients)

55
Q

Fill in the blank: L must abide by C’s decisions regarding the ___ of representation and reasonably consult with C as to the ___ pursued.

A

objectives; means

56
Q

True or false: L must abide by C’s decision on whether to settle.

A

True

57
Q

What client decisions in criminal cases must a lawyer abide by?

A

What plea bargain to enter, whether C will testify, whether to waive jury trial

58
Q

May a lawyer limit the scope of representation?

A

Yes, if reasonable under the circumstances and client gives informed consent

59
Q

Can a lawyer accept employment if they know/should know the suit is frivolous?

A

No

60
Q

Can an L advise a client as to the illegality of an action?

A

No. They can explain what the violation of a law but cannot advise as to a course of action.

61
Q

When is termination mandatory under the MR?

A

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

62
Q

When is termination mandatory under the CA rules?

A

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

63
Q

When is withdrawal permissive under the MR?

A

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

64
Q

When is withdrawal permitted under the CA rules?

A

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

65
Q

Do you need court permission if terminating/withdrawing from representation?

A

Yes

66
Q

What are the duties of a withdrawing lawyer? (3)

A

1) Notice and opportunity to get other counsel
2) Return unearned fees
3) Return client files

67
Q

When may a lawyer limit malpractice liability under the MR?

A

If C independently represented in the agreement

68
Q

Must a C seek independent counsel before settling with L?

A

No, but they must be given written notice and a reasonable opportunity to seek counsel

69
Q

Fill in the blank: Under the CA rules, a criminal defendant who sues a lawyer for malpractice must make a ___ ___ of ___ ___

A

colorable claim; actual innocence

70
Q

Under the CA rules, may an intended beneficiary known to L hold liable for malpractice?

A

Yes

CA Professional Responsibility (3 decks)

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