Duties to Clients Flashcards
Mandatory Rejection/Withdrawal
- Representation will result in violation of rules
- lawyer’s condition substantially impairs ability
- lawyer discharged by client
- (CA) client is acting without probable cause and for purpose of harassing
Permissive Withdrawal
Permitted if it can be accomplished (1) without material adverse effect on client’s interest or (2) where there is good cause.
- Lawyer may withdraw if client fails substantially to fulfill obligation to lawyer (e.g., payment) and has been given reasonable warning that lawyer will withdraw unless obligation is fulfilled.
When Client has Final Decision
- settlement offers
- pleas
- jury trial waiver (criminal)
- testifying (criminal)
Assisting Client in Criminal or Fraudulent Conduct
Lawyer must not. However, they may advise client of legal consequences. If they insist on pursuing, lawyer must withdraw.
Limiting Scope of Representation
Lawyer may limit scope if (1) reasonable and (2) client gives informed consent
Representing Organizations
Lawyer owes duty to organization, not people. Lawyer must explain this whenever org’s interests are adverse to persons.
- Lawyer must clearly identify who their client is
If lawyer learns person associated with org has violated duty in way that may be imputed to org, lawyer must reasonably protect interests, including reporting to highest authority.
- Lawyer may report outside if highest authority fails to act and its necessary to prevent substantial injury. (not in CA)
Duty of Competence
Acting competently means acting with legal knowledge, skill, thoroughness and preparation reasonably necessary.
If not competent, they must decline unless they can
1. learn it without undue expense/delay, OR
2. consult with competent lawyer
Duty of Diligence
Lawyer must control workload and act with dedication (and see matter through to completion unless withdrawal is permitted.
CA: lawyer must not intentionally/recklessly fail to perform without reasonable competence/diligence
Duty of Communication
Must
1. explain matter to client so they can make informed decisions
2. keep client informed of status (all significant developments)
3. promptly comply with all reasonable requests for info from client
Duty of Confidentiality
Lawyer must not reveal any info relating to representation
- Regardless of whether client requests it be confidential
- exists even after client dies
Exceptions to Duty of Confidentiality
Where exception applies, lawyer may disclose cleint’s confidential info only to extent reasonably necessary to meet exception. (permitted but not required)
1. Consent/implied authority
2. Prevent Death/substantial bodily harm
3. Prevent substantial financial loss (CA does not recognize)
4. Defend self or establish claim against client
5. Obtain legal ethics (CA does not recognize)
6. Adress conflict resulting from organizational change (CA does not recognize)
7. Comply with Court Order or Law
Attorney-Client Privilege
Applies only to comms that pertain to legal services.
- When client is corp, comms with employees are generally privileged if authorized and concern duties
Distinguished from Confidentiality:
1. privilege is exclusionary rule of evidence law, prevents being compelled to testify (confidentiality is inside and outside court)
2. Privilege only covers confidential comms between lawyer and client (and agents)
Duty of Loyalty - COI
A lawyer owes a duty to their client, and must avoid or properly address any COIs.
- Some conflicts are non-consentable, others can be resolved with consent.
Lawyer must not represent client when client will be directly adverse to another client (whether in same or separate matter) OR
there is significant risk that representation will be materially limited by lawyer’s own interest or responsibilities to third person.
COI Imputation
Generally when a lawyer can’t take on a matter, firm is imputed.
Exceptions:
- conflict is uniquely personal to the disqualified lawyer AND would not materially limit representation of client by other lawyers in firm
- When conflict is based on lawyer’s prior work, and lawyer is properly screened AND affected persons give notice
Note: Imputation can be waived by affected clients.
ET: if more than one lawyer in facts, check for shared conflicts
Resolving Current-Client Conflict
If there is a conflict with a current client, lawyer may undertake representation if:
1. lawyer reasonably believes they can competently/diligently represent client despite conflict
2. representation is not prohibited by law
3. lawyer is not on both sides of the same litigation
4. each affect client gives informed consent, confirmed in writing
CA: required informed written consent (both disclosure and consent in writing)
Direct Adversity Conflicts
Lawyer generally must not rep client who is directly adverse to different current conflict (unless properly waived). There is a direct adversity conflict even if lawyer respresents clients in totally unrelated matters.
- Even if co-parties interests are generally aligned to begin with, relationships can sour
- mere economic adversity does not amount to direct adversity (can represent competitors)
Material Limitation Conflicts
Even where direct adversity doesn’t exist, lawyer generally must not represent client if significant risk that representation will be materially limited by lawyer’s own interest or responsibilities to third person.
Business Transactions with Client
A lawyer must not enter into business transaction or acquire interest adverse to client unless:
1. terms are fair to client
2. terms and lawyer’s role in transaction are fully disclosed to client in writing
3. client is advised in writing they should get independent advice
4. client gives informed consent, in signed writing
ET: First Discuss Over Coffee - (1) Fair, (2) Disclosure, (3) advice to get Outside lawyer, and (4) Consent
Substantial Gifts from Clients
lawyer must not either
1. solicit substantial gift from client (for lawyer or relative)
2. prepare instrument on behalf of client giving substantial gift to lawyer or relative
Does not apply if client is related to receipient of gift
Financial Assistance to Client
Lawyer must not provide finanacial assistance to client in connection with pending or contemplated litigation.
Exceptions:
1. may advance litigation expenses, and repayment may be contingent
2. if client indigent, lawyer may pay court costs and litigation expenses outright
3. lawyer may provide basic living expenses for pro bono client
CA: applies to financial assistance to client in all contexts.
Compensation from Someone Other than Client
A lawyer must not accept compensation for representing client from someone else unless:
1. client gives informed consent
2. there is no interference with lawyer-client relationship, and
3. confidential information relating to the representation of the client is protected
CA: informed written consent
Settling Malpractice Claim
Lawyer mst not settle malpractice claim without:
1. advising person in writing to get independent counsel, and
2. giving person reasonable chance to consult with said counsel
Prospectively Limiting Malpractice Liability
Lawyer must not make agreement unless client is indepedently represented in making the agreement.
CA: never allows this in any circumstance
Acquiring Media Rights Concerning Client’s Case
May not acquire such rights until after the legal matter is entitrely completed, appeals and all.
CA: does not adopt this rule, treats it as business transaction
Conflicts with Former Clients - Lawyer’s Own Conflict
- Lawyer must never use confidential info to former client’s disadvantage without consent.
- Lawyer must not represent one client whose interests are materially adverse to former client in same or substantially related matter without consent (note there is also conflict relating to current representation if there is significant risk)
- If lawyer’s former firm represented client in matter and lawyer actually acquired confidential material info, lawyer must not rep another person in substantially related matter to former firm’s client.
Conflicts with Former Clients - Firm’s Conflict
Generally, if lawyer is disqualified because of former client conflict, entire firm is also disqualified. However, different rules apply if lawyer has joined or departed firm.
Effect of Lawyer’s Conflict on Firm
Incoming Lawyer - conflict arises out of lawyer’s association with former firm - imputation will be cured if:
- disqualified lawyer is properly screened and does not share in fee, and
- former client is given notice
CA: screening will only cure imputation if disqualified lawyer did not substantially participate in substantially related matter while at former firm
Firm Opposing Client of Departed Lawyer
If lawyer represented a client in matter then left firm and firm no longer represents that client, firm is generally not prohibited from representing a client adverse to former client, unless:
- matter is same or substantially related to former representation, and
- at least one remaining lawyer has confidential material information
Note: Former client can waive with informer consent, confirmed in writing.
Prospective Client
Lawyer owes duty of confidentiality to prospective clients. A prospective client is person who consults in GF about possibly forming lawyer-client relationship, but a person does not receive protections if they unilaterally communciate information to lawyer without reasonable expectation of representation.
Government Work to Private Sector
lawyer must not represent private client in matter which lawyer participated personally and substantially while in gov, unless gov gives informed consent, in writing.
- Imputation to others will be cured if (1) lawyer screened and does not share fee, and (2) written notice to gov agency
Fee Amount
Lawyer must not colelct an unreasonable fee. Factors are time and labor, skill, customs, reputation of attorney, contingent or fixed, etc.)
CA: just prohibits unconsionable fees
Double bills is ordinarily considered dishonest, but CA permits if not unconscionable, lawyer discloses and both clients consent.
Fee Agreements
Lawyer must within reasonable time after commencing representation, communicate expenses and fee for which client will be responsible. Writing is preferable, but generally not required (unless contingent). Lawyer also has duty to communicate changes.
CA: If total expense will exceed $1,000, fee agreement must be in writing
Advance Payments
Lawyer may require a fee be paid in advance, but lawyer must refund unearned portion if they do not perform the services.
- However, lawyer is not required to refund true retainer fee.
Contingent Fee
Under ABA, lawyer must not acquired a proprietary interest in matter. However, exception is made for contingent fees in civil cases.
Like all fees, contingent fees must be reasonable and must be in writing and signed by client.
Writing must disclose:
- how fee is calculated
- what expenses will be deducted
- whether expenses will be deducted before or after fee is calculated
- what expenses client must pay regardless of outcome.
Contingent fees are prohibited in criminal cases and domestic relations cases
Separation of Funds
All money lawyer receives for representation must be promptly placed in client trust account. Lawyer must never place own money or firm’s money into account. Interest goes to client.
- Advance payments must be put into client trust account
- Disputed funds must be kept separate by lawyer until resolution of dispute
Safekeeping and Delivery of Property
Lawyer must:
1. identify and label properties of client/third person and put them in place of safekeeping
2. promptly notify when lawyer receives property
3. promptly deliver property to which client/thirdperson is entitled
4. Keep records for at least 5 years after final distribution of property
Examples of Direct Adversity Conflicts
- multiple clients in same matter with conflicting interests
- lawyer accepts rep of client who is adverse party in different matter lawyer/firm is handling for existing client
- accepts rep of client in matter adverse to existing client of lawyer/firm
- as part of representing client, lawyer must conduct harmful cross of existing client
Examples of Material Limitation
- representing multiple parties on same side with potentially conflicting interests
- lawyer is dealing with former client conflict that could affect rep of current client
- laywer owest duty to some third person that could affect handling of matter
- lawyer has personal interest relating to matter or close family relations with opposing counsel
CA:
- lawyer (or firm) has responsibility to aprty or witness in client’s matter
- lawyer (or firm) has intimate personal relationship with or is client of firm of another party’s attorney
Substantially Related Matters
Matters are substantially related if: (1) they involve same transaction or legal dispute, or (2) substantial risk that confidential factual info that would have normally be obtained in prior rep would materially advance client’s position in subsequent matter.
