Everything on Hawaii Ethics Flashcards
Hawaii Rules of Professional Conduct
Adopted by the Supreme Court of the State of Hawaii to regulate legal practice in the state. Govern lawyers’ daily practice.
ABA Model Rules of Professional Responsibility
Only model standards that have no force or effect in any jdx; they guide and aid drafting of texts like the HRPC that states adopt for actual enforcement.
HRPC Rule 1.3 Requirements for Admission
Requires good character and fitness, including honesty, diligence, financial responsibility, and respect for the law.
Duty of loyalty
A lawyer has a duty of loyalty to his/her client
Concurrent conflict of interest
Occurs if representation of another client, or lawyer’s own personal interest, or lawyer’s responsibilities to a third party are directly adverse to a client, or significantly risk materially limiting lawyer’s representation of a client.
Ignorance of conflict
No excuse unless it arises from short-term legal services under a court, agency, or non-profit program.
Imputed Disqualification
Any group of lawyers that share responsibilities or present themselves to the public as a firm will share each others’ conflicts.
Exceptions:
when conflicts arise from previous gov’t service or work at a previous firm that represented adverse parties, representation by colleagues may be allowed if screened behind an “ethical wall”
Remedies for conflict
Depend on the posture of the case. Lawyer might need to:
1) Reject the representation
2) Advise multiple clients to get separate counsel,
3) Withdraw
Some conflicts may be tolerated if a case by case factual analysis establishes three elements:
1) Lawyer reasonably believes he can represent everyone effectively despite the concurrent conflict;
2) Lawyer consults with each affected client, flagging advantages and risks involved;
3) Client consent, confirmed in writing by the client, or by the lawyer’s recorded transmission to the client following her oral consent.
If a lawyer’s clients are on opposite sides in the same proceeding before a tribunal . . .
it is ALWAYS unreasonable to represent both. This CANNOT be cured with consent.
Opposing a current client in another matter (where the client is represented by different counsel) . . .
is a concurrent conflict, but MAY be ok with consent from all clients.
Representing two clients with inconsistent legal positions, or with competing economic interest, in unrelated matters, is . . .
generally not a conflict and thus does not require consent.
Representing multiple clients in the same matter where their interests are aligned - or lawyer is acting as an intermediary - . . .
raises significant risks that lawyer’s service may become materially limited as a result of the other’s interest.
Examples:
1) Representing a corporation and any of its directors, officers, shareholders, or employees
2) Representing both spouses in drafting wills.
Representation of co-defendants in a criminal case is . . .
ordinarily not allowed without court inquiry and approval
Multiple representation requires
1) proactive disclosure and consent
2) including a warning that attorney-client privileges will not protect client communications if future litigation arises between them.
A lawyer cannot settle claims of multiple clients UNLESS:
1) lawyer fully discloses the claims and participation of each client, and
2) all consent in signed writings
A lawyer cannot take on a new client with interests materially adverse to a former client without . . .
the former client’s consent in writing.
Without this, it would be a violation of lawyer’s duty of confidentiality and loyalty to former client
Clients may consent in advance to future conflicts if . . .
1) they are well-informed, and
2) the type of conflict is familiar.
3) general and open-ended consents are likely to be ineffective
What happens when a lawyer leaves a firm that represented a client adverse to a client at lawyer’s new firm?
Lawyer continues to have a conflict. This conflict is imputed to new colleagues. But, new colleagues may proceed without conflict if:
1) lawyer did not participate in the representation at the old firm and have no material information
2) lawyer is timely and effectively screened off
3) lawyer receives no direct part of the fee, and
4) the former client receives written notice (no consent is needed)
If you worked “personally and substantially” on a “matter”as a government lawyer, you . . .
may not work on that same matter in later private practice without the government’s consent (same is true for “third party neutrals”). Other members of the new firm may work on the matter but only if three conditions are met:
1) you are timely screened, and
2) you do not share any part of the fee in the matter, and
3) your former gov’t employer is informed so it can monitor compliance.
If you are working for the government, you . . .
cannot participate in “matters” in which you personally and substantially participated when in past private practice, unless no one else may act in your stead.
Gifts to lawyer
A lawyer must not solicit a substantial gift from, or draft a legal instrument for, a client who is not your close relative, if it provides a substantial gift to your or your relative
Limiting Liability
A lawyer cannot limit client’s right to report lawyer for ethical violations or to cooperate in disciplinary proceedings. Lawyer cannot limit malpractice liability when he enters into a relationship with client.
Publication of Rights Contracts
Lawyer cannot obtain literary or media rights to accounts related to the representation of client BEFORE the end of proceedings.
Lawyer cannot acquire a proprietary interest in a client’s cause of action EXCEPT for:
a contingent fee arrangement or a lawful lien to secure fees and expenses.
Loans to client are . . .
forbidden, EXCEPT for litigation expenses for an indigent client (pro bono), and the advance of litigation expenses in contingent fee cases.
A lawyer may enter into business with a client or obtain an interest adverse to hers only if:
1) the terms are fair to the client,
2) they are disclosed in understandable writing,
3) lawyer advises the client in writing to consult an outside lawyer before proceeding, and
4) client signs a written consent to the essential terms
A lawyer cannot appear as counsel and witness in the same trial UNLESS:
1) lawyer’s testimony is uncontested, or
2) about lawyer’s legal services rendered, or
3) lawyer’s distinctive value to the case means withdrawal would impose substantial hardship on the client.
Unless a lawyer already has a preexisting sexual relationship,
he cannot have sex with a client.
Close relationships with adversary’s lawyer:
A lawyer cannot directly oppose a party represented by a relative without client consent. Close relations include: immediate family (parent, child, sibling, spouse, or domestic partner)
Organizational Clients
A lawyer must act in the best interest of the entity, even if an officer, employee, or other associated person acts to the contrary.
If a lawyer knows of a violation of law or legal obligation that is likely to result in substantial injury to the organization, the lawyer must:
“Report up” through the highest authority in the company.
If the company authorities do not respond, and lawyer reasonably believes it necessary to prevent substantial injury to the organization, the lawyer may:
“Report out” confidential information without client consent.
Payment for lawyer’s services is:
permitted, but only with informed client consent. And, a lawyer must protect client’s confidences.
Duty of confidentiality to client
General rule: don’t reveal anything related to the representation of a client or use that information against her without her consent.
A person who conveys information to a lawyer unilaterally, without expectation that the lawyer will represent him,
is not a prospective client.
Prospective client and confidenitality
The duty of confidentiality can attach when a prospective client gives a lawyer information BEFORE a lawyer-client relationship is formed, and even if none is ever formed.
To avoid conflicting out everyone in firm, when meeting a prospective client, limit the initial interview to only information necessary to decide whether to take the case, promptly screen yourself from your colleagues, and notify the prospective client of decision.