everything Flashcards
(28 cards)
1.
grounds for discipline
- actual or attempted rule violation
- cirmes and dishonesty (criminal act that refelects adversely on the lawyer’s hoensty, trustworthiness, or fitness, and any conduct involving dishonest, fraud, decit, or misrepresentation)
- actions that harm the justice system including conduct prejudicial to the admin of justice, knowingly assisting a judge in violating the rules of judicial conduct or other law, stating or implying the ability to improperly influence a gov agency or official to achive results illegal or unethical, or make false statements or with reckless disreagrd as to truth or falsity re qualifications or integrity of judge, public legal officer, or candidate for these offices
- discrimination and harssment related to law pratice
IN CA:
* for # 3 it is only judicial officials and candidates
* for #4 only applies to unlaful disc but also prohibits unlawful retaliation
formation of relationship
express agreement, implied based on intendt and conduct (usually when lawyer fails to clearly decline despite knowing person is reasonably relying on them ot provide the services), or via court appointment
reasons to turn down court appointment
(1) representing client likely to result in violation of the rules of professional conduct or other law e.g. COI
(2) representing the client is liekly to result in unreasonable financial burden
(3) the client or cause is so repugnant to the lawyer as to be likely to impair the lawyer-client relaitonship or lawyer’s ability to rep
grounds for mandatory withdrawl
must
1. The representation will result in a violation of the rules of professional conduct or other law
2. the lawyers physical or mental condition substantially impairs the lawyers ability to represent the client
3. the lawyer is discharged by the client
CA addition: the client is bringing an action, conducting a defense, starting a position in litigation, or taking an appeal without probable cause and for the purpose of harassing or maliciously injuring any person
grounds for permissive withdrawl
lawyer is permitted to withdraw if it can be accomplished without **material adverse effect **on the client’s interests, OR good cause
examples of good cause:
* client persists in criminal or fraudulant course of action involving lawyer’s services or has already used laywers sservices to perpetrate a crime or fraud
* client fails substantially to fulfill obligation to the lawyer e.g. paying bills and has been given a reaosnable warning of withdrawl
* rep has been unreasonably difficult bc of the client
* client insists on taking action that the lawyer beleives to be repugantn or with which the lawyer has a fundamental disagreement
* rep will result in unreasonable financial burden
CA:
* no material adverse lang but withdrawl is allowed if client knowingly and freely assents to termination of rep
* no repugnant grounds
protecting client’s interests upon termination
lawyer must (1) give reasonable notice to the client, (2) give the client time to find other counsel, (3) turn over any files or property, and (4) return any unearned advance payments
clients have final decision over…
(1) whether to accept settlement offer
(2) what plea to enter
(3) whether to waive jury trial in criminal case
(4) whether client will testify in criminal case
assisting in criminal/fraudulent conduct
must not counsel or assist client in illegal/fraudulent conduct BUT can advise on consequences of proposed course of action
if client insists on pursuing such course of conduct, L MUST withdraw
CA: adds conduct violating court rule or ruling
representing organizations
lawyer reps and owes duties to the org, not the ppl associated with it
* must explain this whenever org’s interests are adverse to those of the person at the org with whom lawyer is dealing
reporting org misbehavior
If the lawyer learns that a person associated with the organization has acted or is about to act in a way** violates a duty to the organization or law in a way that might be imputed to the organization**, the lawyer must proceed as reasonably necessary to protect the organizations interests
* report up: reporting the matter to the highest authority in the org
* report out: if reporting up doesnt work, lawyer MAY (but is not required to) reprot the infor outside the org to the extent necessary to prevent substantial injury to the org
CA:
* no reporting out
* but if highest authority fails to act, can withdraw
securities lawyers: Sarbanes-Oxley
* reporting up is mandatory
* if all else fails, the lawyer may disclose the matter to the SEC without client consent if reasonably necessary to prevent substantial injury to the organization or its investors, to rectify financial injury from a violation that involved a lawyer services, or to prevent a client from committing perjury
representing someone with diminished capacity
maintain normal lawyer-client relationship BUT can take protective action if they reasonably believe the client cannot protect themselves from substantial harm (and then can reveal confidential info to the extent necessary to protect the client)
competence
acting competently means with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the rep
CA: adds mental, emotional, and physical ability
can solve via ALE:
-associate with a competent lawyer
-learn it without undue expense or delay to the client
-emergency: lawyer who lacks competence may also act for a client in an emergency situation
incompetence exposes a lawyer to disciple by the bar, disqualification in a litigated matter, and civil malpractice liability
competence
acting competently means with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the rep
CA: adds mental, emotional, and physical ability
solving competence problem: ALE
* associate with a lawyer who is comptent in the area
* learn it without undue expense or delay to the client
* emergency: lawyer who lacks comeptence may also act for a client in emergency situation
diligence
competence
acting competently means with the legal knowledge, skill, thoroughness and preparation reasonably necessary for the rep
CA: adds mental, emotional, and physical ability
solving competence problem: ALE
* associate with a lawyer who is comptent in the area
* learn it without undue expense or delay to the client
* emergency: lawyer who lacks comeptence may also act for a client in emergency situation
incompetence exposes a lawyer to disciple by the bar, disqualification in a litigated matter, and civil malpractice liability
diligence
lawyer must act with reasonable diligence in representing a client
* control workload
* working with dedication to client’s interest and promptly pursuing matter to completion
diligence
lawyer must act with reasonable diligence in representing a client
* control workload
* working with dedication to client’s interest and promptly pursuing matter to completion
CA: lower standard
-must not intentionally, recklessly, repeatedly, or with gross negligence fail to perform legal services with reasonable competence or diligence
communication
explain the matter to the client to extent necessary to permit the client to make informed decisions
keep client reasonably informed abt the status of the matter; including all significant developments
* including plea deals and settlement offers except where client has prev indicated that the proposal would be acceptable or unacceptable or has authorized the lawyer to accept or reject the offer
promptly comply with reasonable requests from info from client
communication
explain the matter to the client to extent necessary to permit the client to make informed decisions
keep client reasonably informed abt the status of the matter; including all significant developments
-includes plea bargain or settlement offered unless client has prev indicated that the proposal would be acceptable or unacceptable or has authorized the lawyer to accept/reject the offer
promptly comply with reasonable requests from info from client
informed written consent in CA
requires disclosures by the lawyer and client’s consent both be in writing
confidentiality
a lawyer must not reveal any information relating to the representation of a client, unless the client concerns or some other exception applies
* this includes using confidential info to the client’s disadvantage
* reasonable measures to prevent unatuhorized access to, or inadvertant disclosure of, the client’s confid info
broad: it applies regardless of the source of the information, and prevents all types of disclosure
timing: it applies to information gained during consultations with prospective clients even if the lawyer isn’t hired and it continues to apply even after the lawyer client relationship has terminated and even after the client has died
exceptions
confidentiality
a lawyer must not reveal any information relating to the representation of a client, unless the client concerns or some other exception applies
* this includes using confidential info to the client’s disadvantage
* reasonable measures to prevent unatuhorized access to, or inadvertant disclosure of, the client’s confid info
continues to apply until lawyer-client relaitonship has termianted and even after the client has died
broad: applies regardless of the source of the information and prevents all types of disclosure
exceptions to DOC
(1) consent
-express or implied in order to carry out the rep
(2) prevent reasonably certain death or substantial bodily harm
-limits in CA: only criminal act that is likely to result in death or SBI, and first have to make good faith effort to persuade the client not to comitt or continue committing the act, and inform client of the lawyer’s ability or decision to reveal the information
(3) prevent the client from committing a crime or fraud that is reaosnlby certain to cause substantial financial loss to a person if the client is using or has used the lawyer’s services in furtherance of the crime or fraud
-also to rectify or mitigate the financial loss if the crime is already completed
-no such exception in CA
(4) defend self or establish claim against client after client has brough actual claim or proceeding against the lawyer
(5) obtain legal ethics advce
(6) adress conflict resulting from org change/change of employment
-but laywer must not reveal information that would compromise the ACP or otherwise prejudice the client
(7) comply with court order or law requiring the lawyer to disclose info about the client (but first must challenge it and seek review if poss) and may permit disclosure if another ethics rule requires e.g. outside reporting of corporate violations and candor to the tribunal
-CA only recognized court roders, not other ethics rules; confidentiality is supreme
