Ethics Flashcards
When is a Lawyer-Client relationship created?
When the client objectively believes there is such relationship.
What decisions must be made by the client?
- Objectives and goals
- Final decision to accept a settlement or plea
- Criminal testimony
- Jury trial
When must an attorney withdraw?
(1) Rule violation (ABA violation of the model rules or any law –CA just the rules or State Bar Act).
(2) Material impairment of physical or mental health.
(3) CA Rules: Bad Faith Claim
(4) Discharge – Both rules
When may an attorney withdraw?
(1) ABA allows withdraw if it will not harm the client, however CA does not recognise this.
(2)
What is required at withdraw?
(1) Reasonable Notice
(2) Mitigate consequences
(3) IN Ca return all papers whether paid for or not, ABA must return those to which the client is entitled.
(4) Must return funds but may keep any the lawyer is entitled to.
What fees may be charged?
ABA a lawyer may not charge an unreasonable fee, CA a lawyer may not charge an unconscionable fee
Facts, amount of work, novelty, time limitation, whether fixed or contingent fee, the experience - reputation - etc of the attorney
When the agreement is made
When must a fee agreement be in writing
All contengent fees
ABA - recommended, not required
CA if the fee is over 1K
Exceptions: 1 Corporation, 2 History of similar circumstances, 3 emergencies, 4 client waives the written fee agreement
What must be in a contingent fee agreement:
- Basis for calculation
- Client’s liability for cost and fees
- Whether expenses are before and after
- IN Ca must state that it is negotiable and state whether client will have to pay for unrelated matters
Under CA law, failure to comply renders the agreement voidable.
When are contingent fees prohibited
Criminal and family cases related to obtaining divorce or amount of spousal support
Requirements for fee sharing with non-firm attorney?
CA: May split fees is approved by the client in writing, and the total fee is not increased as a result
ABA: must be split in proportion to service unless both assume joint responsibility.
What are the rules on referal?
- ABA: A lawyer may not give anything of value
What doctrines govern confidentiality?
The Attorney-Client Privilege
The work product doctrine
The duty of confidentiality
Exceptions to the Attorney-Client Privilege?
- Future Crime or fraud
- Comms relevant to a dispute
What is the duty of confidentiality?
Generally, a lawyer may not reveal anything related to client representation.
Exceptions:
1. client consent
2. When implied authorization (ABA)
3. Or when permitted by the rules
4. When a lawyer reasonably believes disclosure reasonably believes will result in death or substantial harm to an individual. (CA) Lawyers must take steps to dissuade and must inform the client it will be revealed.
5. Secure Legal advice
Rule on conflicts between attorny and client?
A lawyer may not represent a client if the representation will be materially affected unless;
- lawyer reasonably believes they can provide competent and diligent repoestation
- Not bared by law
- Not adverse
- Informed consent in writing (CA) confirmed in writing (ABA)
What is the rule on conflicts between current clients?
A lawyer may not represent clients that are directly adverse, or if there is a significant risk that the representation will be materially limited.
Exception if
Lawyer reasonably believes they can represent both clients
Not barred by law
Not one claim against another in the same litigation
Consent: Informed consent confirmed in writing (ABA) written informed consent (CA).
When can a third party pay?
- Lawyer maintains professional judgment
- Client confidentially preserved
- Informed written consent
What is the standard for competence?
Knowledge, skill, and preparation reasonably necessary for representation. In CA, Mental, emotional and physical ability included.
What is the rule on dilligence.
A lawyer must not fail to act with reasonable diligence
What is the rule on communication?
A lawyer must regularly communicate with client and keep the client reasonably update them on changes in the litigation. Must educate client sufficiently to make a decision.
What are the duties to jurors
No communication during litigation may discuss after, but nothing that could be harassment.
What is the rule on trial publicity?
A lawyer may not make out-of-court statements if the lawyer knows or should know that it will be distributed in the idea and has a substantial likelihood of material prejudice.
Unless mitigating a recent prejudice.
Prosecutors must exercise reasonable care to prevent assistance from making similar statements
What are the rules under the duty of fairness?
Must no suppress evidence
Must not pay witness to testify but may pay expenses.
Must not violate discovery or allude to inadmissible facts
No unlawful exparte comms
Inadvertant disclose
ABA must notify sender
CA must limit examination to the extent required to determine if it was inadvertant
What is the duty of honesty?
When representing a client, a lawyer must not make a knowingly false statement.
What is the duty when dealing with an unrepresented person?
Must not indicate a lack of interest and must clarify the misunderstanding.
In CA must not seek to obtain privileged or other confidential information.
What is an advertisement?
A widely distributed statement or publication about the lawyer’s services.
What are the rules on ads?
- No material false or misleading communications
- Must include Name and contact of one attorney (ABA) Name and address of one attorney (CA)
What is permitted in Ads
- Fields of practice
- Degree, memberships and licenses
- Fees
- Bar Admision
What are the rules on trade names?
No misleading trade names
What is solicitation?
Looking for buinsess froma specific person
What are the rules on solicitation?
Cannot solicit in person or real-time electronic means for profit except from
What is required for malpractice liability?
Proof of injury
