High - Prof Resp Flashcards
Formation -PR
(1) person seeks legal services (2) lawyer manifests consent to provide services OR fails to manifest lack of consent and knows/should know that person would reasonably rely on legal services
Scope -PR
C = controls objectives of representation
L = controls means (tactical decisions) BUT must consult with C
L may limit scope IF: (1) reasonable under the circumstances (2) C gives informed consent
Duty of Competence -PR
L must posses legal knowledge, skill, preparation, thoroughness necessary to effectively represent C
if incompetence, L must: (1) associate w/another reasonably competent L (2) acquire sufficient learning and skill before performance or (3) in emergency
Incompetence = (1) discipline by bar (2) disqualification (3) civil malpractice
CA = only subject to discipline if intentionally, recklessly, acts w/ gross negligence or repeatedly fails to perform
Duty of Communication -PR
keep C reasonably informed about significant developments relating to representation
Includes: (1) inform of situations where C’s informed consent is required (2) reasonably informed of status (3) promptly comply w/request of info (4) strategy decisions (5) settlement offers (6) advisement where ethical rules are an issue
Duty of Diligence PR
L is reasonable diligence and promptness when representing a C - must pursue case to the end.
CA = cannot intentionally, repeatedly, recklessly, gross negligence fail to act
Duty of Confidentiality -PR
All info relating to rep of C
ABA: L may disclose (1) C consents (2) L ordered by law (3) defend malpractice/suit t recover legal fees (4) prevent crime or fraud that will result in substantial financial loss
CA: MAY disclose if (1) necessary to prevent crime likely to result in death/substantial bodily injury PLUS must (1) make good faith attempt to counsel client (2) inform C of L’s decision to disclose
Duty of Loyalty -PR
must act in the C’s best interest and avoid conflicts
PLUS cannot engage in self-dealing OR act in own interest
COI - Current Clients
(1) rep is directly adverse to another C (2) significant risk that L’s rep will be materially limited due to personal interest or responsibilities to others
UNLESS L: (1) reasonably believes that he can provide competent and diligent rep (2) not prohibited by law (3) not rep parties on opposite sides (4) informed consent
CA= written informed consent
ABA= informed consent, confirmed in writing
COI - Former Clients
Unless informed consent, L cannot represent in same or substantially related matter when person’s interests are materially adverse to interest of former C
Lawyer’s Firm: (1) interests are materially adverse (2) L had acquired confidential info that is material to the matter
Business Transaction w/ C and Pecuniary Interests Adverse to the C -PR
MUST (1) terms are fair and reasonable to C (2) terms are fully disclosed in writing (3) C is advised to consult w/outside counsel (4) C consents in writing
EXCEPT: (1) ordinary fee arrangements (2) standard commercial transactions (3) charging lien given to secure contingency fee [CA only]
Declining or Terminating Rep
Mandatory Withdrawal: (1) discharged (2) physical or mental condition (ABA: materially impairs/CA: unreasonably difficult) (3) violation of ethics rule/other laws
CA: if knows/should know C is bringing action (1) w/o probable cause (2) purpose of harassing/maliciously injuring a person
Proper withdrawal: (1) timely notice to C (2) prompt return of fees/property (3) obtain ct approval if lawsuit is filed
Duty of Candor to the Court
cant engage in dishonesty or fraud. Cannot knowingly (1) make false statement of fact or law to tribunal (2) fail to correct false statement (3) fail to disclose controlling legal authority known to be adverse (4) offer to use false evidence - if does, must take remedial measures
Witness Perjury -PR
Cannot call witness knows will commit perjury
D (testifies in crim): (1) persuade the C that evidence should not be offered (2) attempt to withdraw (3) ABA: must tell the court / CA: allow D to testify in narrative fashion - can’t disclose confidential info
Filing Frivolous Claims and Contentions -PR
duty to investigate claims/defenses filed on behalf of C
prohibits: (1) actions that lack probable cause & intended to harass/maliciously injury (2) claims/defenses unwarranted under existing law w/o good faith for a change in law
Duty of Fairness to Adversaries -PR
no communication w/rep person - unless (1) L has permission from person’s L (2) authorized by law or court order (3) public official, board committee, or body [CA only]
