Duties to the Client Flashcards
When MAY a lawyer withdraw (ABA)?
- PERSISTS in action you Reasonably believe is CRIME/FRAUD (present)
- insists on behavior you find REPUGNANT
- FAILS SUBSTANTIALLY TO FULFILL OBLIGATION, has been given R WARNING that you will withdraw
- OTHER good cause
- no MATERIAL ADVERSE EFFECT on client
- client has USED YOUR SERVICES to commit CRIME/FRAUD (past)
- UNREASONABLE FINANCIAL BURDEN
When MAY a lawyer withdraw (CA)?
- PERSISTS in action you Reasonably believe is CRIME/FRAUD
- insists on behavior you find REPUGNANT
- FAILS SUBSTANTIALLY TO FULFILL OBLIGATION, has been given R WARNING that you will withdraw
- OTHER good cause
What are the reasons that a lawyer MAY NOT withdraw in CA (though can withdraw for these reasons under ABA)
- No MATERIAL ADVERSE EFFECT on client
- Client HAS used your services to commit a CRIME/FRAUD (past)
- UNREASONABLE FINANCIAL BURDEN
When MUST a lawyer withdraw (ABA)?
1) would result in VIOLATION of RPC / other LAW
2) Physical/mental condition IMPAIRS lawyer
3) DISCHARGED
When MUST a lawyer withdraw (CA)?
1) would result in VIOLATION of RPC (not other law)
2) KNOWS client has NO PROBABLE CAUSE and purpose to HARRASS/maliciously injure another
Contingent Fees in Divorce cases:
ABA:
No contingent fees in domestic relations cases (securing divorce or property settlement)
CA:
No contingent fees IF ENCOURAGES BREAKUP OF MARRIAGE
ISSUES to raise in Fees cases:
- Fees Generally/ Amount
- Validity of Contingency Fee
- Use of Contingency Fee in Divorce/Crime case
- Stake in the Outcome
What is the basic rule regarding Fees?
ABA: Must be REASONABLE
CA: Must not be UNCONSCIONABLE
When are Contingency Fees Prohibited?
ABA: Divorce, Crime cases
CA: May not encourage divorce
When are Referral Fees permitted?
Prohibited.
However, FEE SPLITTING is allowed:
ABA:
i) in PROPORTION to services performed
ii) in WRITING
iii) SIGNED by CLIENT
CA:
i) Fee NOT INCREASED BECAUSE of fee split
ii) Client KNOWS TERMS and CONSENTS
Must a lawyer have PROFESSIONAL LIABILITY INSURANCE?
No. No duty to have this.
But if he doesn’t…
i) must inform client in writing
ii) if likely will do MORE THAN FOUR HOURS
May a lawyer ever step outside of his Competence level?
Yes, IN AN EMERGENCY.
Duty of Competence – Slapdown
Duty of Competence requires the legal Knowledge, Skill, Thoroughness, and Preparation reasonably necessary for the representation.
What duties are under the Duty of Competence?
Duty to Communicate
Duty of Diligence
Duty to Withdraw from Representation
May you OPPOSE a CURRENT client in another matter ?
if all clients consent
May you represent 2 clients with INCONSISTENT POSITIONS?
usually no conflict,
if would disadvantage, get consent.
May you represent multiple clients in the SAME MATTER?
a Potential conflict.
must have DISCLOSURE and CONSENT.
May you represent NEW CLIENTS in matters RELATED to FORMER CLIENTS?
“You may not take on a new client with interests MATERIALLY ADVERSE to a former client without the former client’s CONSENT.”
What is the rule for a FORMER GOVERNMENT LAWYER now in private practice?
Gvmt lawyer who worked “PERSONALLY SUBSTANTIALLY” on a “MATTER” may not work on the SAME MATTER later in private practice w/o GOVERNMENT CONSENT.
Are enacting regulations and later litigating their meaning considered a “matter” for a former gvmt lawyer?
NO.
What is the general rule for Conflicts of Interest?
You may not represent a client if you have a CONCURRENT Conflict of Interest.
What is a “Concurrent Conflict of Interest”?
1) one client DIRECTLY ADVERSE to another
or
2) SIGNIFICANT RISK that repping a client will be MATERIALLY LIMITED
(by: Responsibility to Current Client
Responsibility to Third Party
Personal Interest of atty)
When may you get Client Consent & rep both, despite COI (ABA)?
i) R belief /COMPETENT & DILIGENT for each
ii) NOT Prohibited by Law
iii) NO Assertion of ONE CLIENT AGAINST ANOTHER
iv) Clients give INFORMED CONSENT, IN WRITING
When may you NOT represent 2 clients, even if they give consent?
If duty of confidentiality PREVENTS YOU FROM DISCLOSING to one client what she needs to know to UNDERSTAND the COI.
When may you get Client Consent & rep both, despite COI (CA)?
i) NOT Prohibited by Law
ii) NO Assertion of ONE CLIENT AGAINST ANOTHER
iii) WRITTEN DISCLOSURE (not informed written consent) when conflict from your past relationships/personal interests
*for ACTUAL and POTENTIAL conflicts
Are the Clients Consenting to COI rules applicable to POTENTIAL conflicts as well as Actual
… ABA?
…CA?
ABA: No
CA: No
What is the general Rule of IMPUTED CONFLICTS?
(ABA):
Generally, if a lawyer faces a conflict of interest, the conflict is imputed to all other members of his firm – no other lawyer in firm may rep the client.
(CA):
No CA rule– a CA lawyer is NOT SUBJECT TO DISCIPLINE for an imputed conflict.
What are the Exceptions to the Imputed Conflicts rule?
not when the imputed conflict is bc of:
- GOVERNMENT lawyers
- PERSONAL INTEREST of conflicted lawyer
- Close FAMILY relationship
- SEXUAL relationship
* 5. PRIOR LAW FIRM —> & TIMELY SCREENED.
What are the requirements for Screening to prevent Imputed Conflict?
i) TIMELY SCREENED from any involvement
2) No part of the FEE
3) Written NOTICE to any affected former client
4) CERTS OF COMPLIANCE w/screening procedures provided to client upon termination of screening
Is screening used in CA?
You might think no, since there’s no Imputed Conflict Rule.
But courts (case law) were traditionally harsh on the Imputed Conflict Rule in CA.
Now, courts are more open to using screening rather than Vicarious Disqualification.
Rule for SEXUAL RELATIONSHIP w/client?
ABA: No new sexual relationships.
OK if already existed prior to representation.
CA: May have sexual relationships. But NOT if: i) demanding sex as CONDITION of representation ii) COERCION or undue influence iii) affects COMPETENCY
Rule for PROPRIETARY INTEREST in COA?
No Proprietary Interests in COA.
EXCEPT:
ABA:
(i) LIEN to secure atty FEES & expenses
(ii) CONTINGENT FEE in civil case
CA:
CONTINGENT FEE in civil cases.
** NO LIENS to secure fees; must return all papers to client promptly.
Rule for LIMITING MALPRACTICE LIABILITY?
(ABA)
Must not make agreement prospectively limiting Liability to client for Malpractice.
EXCEPT: if repped by INDEPENDENT COUNSEL.
(CA)
Must not make agreement prospectively limiting Liability to client for Malpractice.
NO EXCEPTION.
Rule for Financial Assistance to Client for litigation:
(ABA):
i) may advance COURT COSTS and EXPENSES of litigation,
ii) [if an INDIGENT CLIENT] may PAY the COURT COSTS and EXPENSES
(CA):
Same, but
i) ALL contexts, not just litigation,
ii) no “BUYING” potential client w/promise to pay PERSONAL OR BUSINESS DEBTS
iii) may LOAN money to client for ANY purpose once hired, if client gives WRITTEN PROMISE to repay the loan.
What is the Duty of Confidentiality?
ABA: A lawyer may not reveal information relating to the representation of her client.
CA: No rule, but oath gives rise to same duty.
What are the EXCEPTIONS to the Duty of Confidentiality (ABA):
ABA:
- Death / Grievous Bodily Harm
- Prevent / Rectify Serious Financial Harm
- Consent
- Compelled by Court, Rules of Ethics, Law
- Malpractice Defense
- Collecting Attorney’s Fees
- Legal Ethics Advice
What are the EXCEPTIONS to the Duty of Confidentiality? (CA)
- Death/Grievous Bodily Harm
- Consent
- Compelled by Court, Law
- Malpractice Defense
- Collecting Attorney’s Fees
What is the Attorney-Client Privilege?
An EVIDENTIARY privilege that allows a client to REFUSE TO TESTIFY and PREVENT HIS ATTORNEY from testifying in court about confidential communications between the two OR THEIR RESPECTIVE AGENTS.
What are the EXCEPTIONS to the Attorney-Client Privilege? (ABA)
- Prevent Future Crime/Fraud
- Atty-Client Lawsuit
- Joint Clients
- To show Competency or Intention of client who has attempted to dispose of property by will or inter vivos transfer
What are the EXCEPTIONS to the Attorney-Client Privilege? (CA)
- Prevent Death or Substantial Bodily Injury
- Prevent Future Crime/Fraud
- Atty-Client Lawsuit
- Joint Clients
- To show competency or intention of client who has attempted to dispose of property by will or inter vivos transfer
What violation could you make if you use nonlawyers to assist your firm?
An attorney is subject to discipline for ASSISTING NON-LAWYERS to engage in the practice of law.
What is the “practice of law”?
Doing things that call for the PROFESSIONAL JUDGMENT OF A LAWYER.
What are the requirements wrt ADVERTISING? (ABA)
- Advertising must not be FALSE OR MISLEADING
- Must not call yourself a SPECIALIST unless got certified (may say area of practice tho).
- Must not HARRASS/Solicit s.o. who’s said they want to be left alone
- Must be LABELED AS ADVERTISEMENT, on envelope and first page.
- Identify ATTORNEY RESPONSIBLE for contents.
What are CA-only requirements wrt ADVERTISING?
- communications to anyone at hospital/accident scene/ anyone not in state to exercise R judgment are PRESUMED false & misleading.
no guarantee of outcome
no promise of quick cash/ settlement
no dramatization w/o disclosure
no impersonation w/o disclosure
Contingent fee offer must warn client may have to pay costs of litigation even if lose
May threats of Criminal Prosecution be used to Gain advantage in a Civil Case?
ABA: allows; so long as charges would be warranted by law and facts;
CA: prohibited.
