Ethics/Code of Conduct Flashcards
Rules of Professional Conduct of the State bar of California
Authority governing conduct/ethics of CA attorneys
States what is expected of an attorney when dealing with clients, the bench and fellow bar members
Failure to adhere to rules may result in disciplinary action ranging from fines to suspension to disbarment
Assistants not bound by these rules but, insofar as they provide assistance to attorneys in their duties, are expected to adhere to them as much as possible
There is sometimes a fine line between what is unethical and what is just inappropriate
LPI Code of Ethics
Rules to which LPI members are bound
It shall be the duty of each member of LEGAL PROFESSIONALS, INCORPORATED to observe all laws, rules and regulations now or hereafter in effect relating to confidentiality and privileged communication, acting with loyalty, integrity, competence and diplomacy, in accordance with the highest standards of professional conduct.
Direct/indirect communication rule
Lawyers shall not communicate directly/indirectly with a party known to be represented by another lawyer without consent from the other lawyer (Rule 2-100)
Competent Service Rule
A member shall not, intentionally, recklessly, or repeatedly, fail to perform legal services with competence (Rule 3-110(A))
Information Sharing Rule
A member shall keep a client reasonably informed about significant developments and promptly comply with reasonable requests for information (Rule 3-500)
A member shall promptly communicate settlement offers to client (Rule 3-510)
Sexual Coercion Rule
A member shall not require or demand sexual relations with a client incident to or as a condition of any professional representation (Rule 3-120(B)(I))
Confidentiality
Lawyers bound by Rules of Professional Conduct to maintain client confidences and enforce confidentiality in office
Most lawyers consider a breach of confidentiality ground for immediate termination
Violations of confidence can occur orally/verbally or in writing
Do not discuss clients/cases with anyone outside of office or in public
Privileged Communication
Any information which an attorney has as a result of the confidence with client, and about which the attorney cannot be compelled to testify
Includes documents
Do not send docs to anyone without first consulting with an attorney
Some info is public
Attorney-Client Privilege
Anything client tells lawyer in the course of their attorney-client relationship is privileged
Has become more complicated with the prevalence of emails, faxes, cloud storage etc.
Docs emailed as attachments or as attached PDFs should be secured
Client Funds
To be kept separate from firm business accounts
It is unethical to co-mingle accounts, or to draw funds from a trust account for costs that have not yet been earned/incurred
Fees are not to be drawn from client trust without first being earned
Conflicts of interest
Rules that a lawyer shall not represent clients whose interests conflict, except with their informed written consent
Methods for Preventing Conflicts of Interest
Depend on size of firm
- Discuss the potential/new client with staff/other attorneys in the firm (small firms)
- Keep database of all clients and adverse parties that contains info on current and closed cases and is checked when taking on new clients (medium/large firms)
- Conflicts Check Dept.
Conflict Checks Department
Very large firms may have a stand-alone “conflict checks” deptartment
Utilizes cpu database of billing info, parties involved, description of the services the firm would be rendering, the originating attorney, billing attorney, how attorney fees would be split if more than one attorney works on the case, and any other information that would be helpful in avoiding conflicts of interest
Conflict Waiver
If firm discovers conflict and nonetheless wants to continue representing a client, they (the client) would need to sign a “conflict Waiver”
Indicated that signer understands that the firm has represented parties in the past that are opposing parties in the current matter, but that attorney representing signer/new client would not discuss matter with any other attorneys in the firm and would represent client competently during matter
Privilege/Privacy Concerns around Electronic Communication (Encryption/Consent to Disclosure)
Use of non-encrypted emails to communicate with client may constitute a waiver of attorney-client privilege
May thus want to consider using encryption software, which allows encrypted emails/files to be sent to recipient with encryption key
Emails sent to accounts whose users have consented to disclosing their emails, as many companies require of employees, may not be protected by privacy/privilege rules
Be careful about who you send emails: double-check address, attachments, and whether or not you hit reply-all
