I. Duty to Clients Flashcards
Broad Issue Checklist
I. Attorney’s Duty to the CLient
II. Attorney’s Duty to Third Parties
III. Attorney’s Duty to the Court
IV. Attorney’s Duty to the Public & Profession.
RS: The L has a duty of ___ to ___.
“The lawyer has a duty of (fill in a duty) to (fill in a person or thing).”
I. THE ATTORNEY’S DUTY TO THE CLIENT (checklist)
A. The Duty of Loyalty
B. The Duty of Silence (Confidentiality)
C. The Duty of Competence
D. The Duty of Financial Integrity
E. Other Duties to Client - Other reasonable things (diligence, communiocation)
Clients Love Fierce Counsel.
A. The Duty of Loyalty
(Conflicts of Interest)
L owes duty of loyalty to C, and must avoid or properly address any conflicts of interest.
- General conflicts of interest between lawyer and client
a. Directly adverse to another client
b. Significant risk of material limitation based on lawyer’s personal interest or lawyer’s duties to another
1) Personal interest or relationship (if no significant risk of material limitation, CA requires written disclosure to client re: personal relationships)
2) Multiple clients on same side
3) Former client
4) Third person - Specific current client conflicts
a. Business transactions, including lawyer accepting property in exchange for legal services
b. Gifts
c. Stake in outcome of litigation
d. Sexual relationship with client
e. Using confidential information to client’s disadvantage
f. Limiting malpractice liability
g. Third party payments - Organization as a client
- Conflicts based on consultations with prospective clients
- Former government lawyer
- Former involvement in matter as judge, mediator, etc.
- Imputed disqualification
Conflict— Direct Adversity or Material Limitation ***
(General Types of conflicts with CURRENT clients)
(CURRENT-CLIENT CONFLICT)
Generally, L must not represent a C if:
(1) Representing one C will be DIRECTLY ADVERSE to another C who is represented by L (whether in same or separate matter).
OR,
(2) There is a SIGNIFICANT RISK that the rep’ of the C will be MATERAILLY LIMITED by L’s OWN INTEREST or by L’s RESPONSIBILITIES to another C, a former C, or to a third person.
Steps for resolving Current-Client conflict
L may still undertake the rep if Four Conditions are ALL satisfied:
- L reasonably believes they can competenyl and diligently rep client, despite the conflict (objectvie standard - reasonably prudent and competent L)
- Rep is Not prohibited by law.
- Rep does not involve asserting a claim by one C against the other C by that L in the SAME proceeding.
- (L or L’s colleagues not on both sides of litigation). DIRECT ADVERSITY (where L is on both sides of same litigation) IS NEVER CONSENTABLE. - Each Affected C gives INFORMED CONSENT, confirmed IN WRITING.
- (L tells them risks, advantages, etc.: Relevant circumstances, reasonable alternatives, foreseeable ways conflict might harm them)
- In order to inform, L needs to be careful about violating duty of confidentiality in obtaining informed consent, cannot get it if would violate.
• CA: INFORMED WRITTEN CONSENT - both the disclosure to C, and the consent back from the C must be in writing. (this is more than the ABA).
Direct Adversity Conflict
Generally, Must not rep a C who is directly adverse to a current C.
Direct adversity conflict exists even if reps C in totally unrelated matters.
EXCEPTION: - CONSENT for UNRELATED matter: UNLESS the conflict can be and is properly waived (but it cannot be waived if it is the same proceeding). Must be in unrelated matter.
Adverse party in different matter: Potentially consentable with informed consent
Not direct adversity: Mere economic adversity. Business competittors who are not actually in litigation.
BUT, CAN NEVER REP OPPOSING PARTIES IN THE SAME MATTER (includes imputed firm colleagues)
Ask, is L on both sides of same case? If yes, cannot rep. If No, can rep if informed consent.
NOTE: Adversity is about parties, not positions.
Examples of Direct Adversity:
• L reps multiple Cs in same matter, interests are in actual conflict.
• A lawyer accepts representation of a client who is an adverse par- ty in a different matter the lawyer or firm is handling for an existing client.
• A lawyer accepts representation of a client in a matter adverse to an existing client of the lawyer or firm.
• As part of representing a client, a lawyer must conduct a harmful or embarrassing cross-examination of another existing client of the lawyer or firm.
MERE ECONOMIC ADVERSITY does not amount to direct adversity for conflicts purposes.
DIRECT EXAMINIATION = Direct adversity: If L Must conduct Harmful or direct exmination of another C, recognized as form of direct adversity.
CA special rule for insurance cos
L hired by insurance co to rep driver, must not file direct action against insurer without informed consent.
BUT, by statute, L has no duty of loyalty to insurer when insurer’s is only an indemnity provider, and insurance co is not a direct party to the action.
EX: InsCo retains you to represent Driver 1 in tort case. May you now represent Driver 2 in a different case against Driver 3 and InsCo, Driver 3’s insurer? YES.
Under California law, a lawyer who is retained by an insurance company to represent an insured also represents the insurance company for conflicts purposes.
Thus, the lawyer must not file a direct action against that same insurer in an unrelated case without the insurer’s consent.
However, by statute, the lawyer has NO DUTY OF LOYALTY the insurer when the insurer’s interest in each matter is only as an INDEMNITY PROVIDER and not as a direct party to the action.
Material Limitation Conflicts
CA special rule?
(Even if no direct adversity….)
A L must not rep’ a C if there is a SIGNIFICANT RISK that the rep’ will be MATERIALLY LIMITED by:
- L’s own interest, or
- L’s responsibilities to another C, a former C, or a Third person.
UNLESS informed consent (conflict is waived).
— Signifcnat risk of amterial limitation conflict rule is relevant in any situation where L’s abiulity to rep could eb affected.
EXamples: .
- Repping multiple parties on same side of matter and parties have potentially conflicting interests.
- Where a lawyer is dealing with a former client conflict that could affect their representation of the current client
- Where the lawyer owes a duty to some third person and it could affect their handling of the matter (for example, L serving on the board of directors of a corporation).
- L has personal or finanicl interest in matter. Close family relationships with opposing counsel are such a conflict and require client consent.
CA - Disclosure requirements for certain relationships: Always requires written disclosure of certain relationships. Extends conflict to anyone L is in personal relationship with.
Even when a “significant risk” of material limitation is not present, the following relationships always require written disclosure to the client:
• Where the lawyer (or another lawyer in their firm) has a legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client’s matter
• Where the lawyer (or another lawyer in their firm) is an immedi- ate family member of, or lives with, or is in an intimate personal relationship with, or is a client of the firm of, another party’s attorney in the client’s matter
If the relationship does create a significant risk of material limita- tion, the usual informed written consent from the client is required.
Busines trans with C and Pecuniary int’s adverse to C
L must not enter into a business trnasaction with a C or knowingly acquire an ownership, possessory, security, or money interest adverse to C, unless ALL of these conditions are satisfied:
- terms are FAIR to C under the circumstances known to L at the time.
- terms and Ls role in trans’action are FULLY DISCLOSED to C in a writing that C can reasonably understand.
- Client advised in writing to get independent advice from OUTSIDE Lawyer before entering arrangement.
- C gives informed consenrt in WRITING SIGNED BY CLIENT.
FDOC (fairness, disclosure, outside counsel, writing).
“First Discuss Over Coffee” might help you remember the requirements: (1) Fairness; (2) Disclosure; (3) advice to get Outside Lawyer; and (4) Consent.
Standard Commercial Transactions: this rule does not apply to standard commercial transac- tions between the lawyer and client for products or services that the client generally markets to others
EX: Biz transactions with Cs:
• Accepting non-monetary property (such as stock) as payment for legal services
• Borrowing money from a client, or purchasing property from a client
• Selling property to a client
• Taking an interest in the client’s property as security for pay- ment of fees
Misuse of CI
Cannot use CI to C’s disadavantage without consent or confidentiality exception
Substantial gifts from Cs
L must NOT:
- SOLICIT a substantial gift form a C (for L or L’s relative), or
- PREPARE AN INSTRUMENT on behalf of C giving a subsatntial gift to L (or L’s relative)
Exception: if C is related to gift recipient.
CA: L may prepare an instrument that creates a substantial gift for the lawyer or the lawyer’s relative— even where the client isn’t related to the recipient—if the client has been advised by an independent lawyer who has provided a certificate of independent review.
Financial assistance to C - ABA
L MUST NOT provide finnancial Assistance in connection with pending or contemplated LITIGATION, EXCEPT
- advancing courtt costs and lit expenses, and repayment may be contingent on outcome of case
- Paying indigent C’s court costs and ltiigation expenses outright.
- When acting pro bono for indigent client, L may provide modest gifts to C for basic living expenses (food, rent, transport, medicine), BUT L MUST NOT:
– (1) promise or imply the availability of those gifts, (2) seek of accept reimbursement, or (3) publicize or advertise L’s iwllignness to provide those gifts.
Financial assistance to C - CA Rule
Can advance or pay any type of expense in promoting C’s interests, in ALL CONTEXTS (not just litigation), BUT
- cannot promise to help potential clients pay debts
- Can lend money for any purpose if C gives written prommise to repay.
- With C’s consent, L can pay C’s expenses to third party from funds collected in case.
Aggregate Settlement Agreements
Must fully disclose verything to erach client and obtain informed consent in signed writing.
A lawyer must not participate in the making of an aggregate settle- ment agreement (meaning, an agreement where multiple parties settle their claim at the same time) unless:
(1) the lawyer discloses to each client the existence and nature of all the claims or pleas involved and the participation of each person in the settlement; and
(2) each client gives informed consent to the agreement in a writing signed by the client
Compensation from Someone Other than Client
L must not accept compensation for representing a client from someone other than the client unless:
(1) the client gives informed consent; (CA - INFORMED WRITTEN CONSENT)
(2) there is NO INTERFERENCE with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and
(3) confidential information relating to the representation of the client is PROTECTED.
Settling Existing Malpractice Claim with Unrepresented Client or Former Client
L must not settle a claim or potential claim for malpractice liability with an unrepresented client or former client without:
(1) advising that person in writing that independent counsel is desirable, and
(2) giving that person a reasonable chance to consult with independent counsel.
Prospectively Limiting Liability for Malpractice
A L must not make an agreement prospectively limiting the L’s liability to a client for malpractice unless the client is INDEPENDENTLY REPRESENTED in making the agreement.
CA: The California rule does not allow a lawyer to prospectively limit malpractice liability to a client in any circumstance.
Acquiring Literary or Media Rights Concerning Client’s Case
A L must not acquire literary or media rights to a story based in substantial part on information relating to the lawyer’s current repre- sentation of a client.
However, the lawyer may acquire such rights after the client’s legal matter is entirely completed, appeals and all.
CA: California did not adopt this rule. A lawyer’s acquisition of literary or media rights based on the client’s case is treated as a business transaction/pecuniary interest adverse to a client and must meet the requirements of that rule.
Acquiring Proprietary Interest in Litigation
L must not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the L may:
(1) acquire a lien authorized by law to secure the lawyer’s fee or expenses, and
(2) contract with a client for a REASONABLE CONTINGENT FEE in a civil case.
rule is limited to litigation matters.
CA: California did not adopt this rule. A lawyer’s acquisition of an own- ership interest in the subject of the representation is treated as
a business transaction/pecuniary interest adverse to a client and should be analyzed under that rule
Participation in Foreclosure or Sale—Must Comply with Probate Code (California Only)
In connection with a probate, foreclosure, receiver’s, trustee’s, or judicial sale, the CA Rules provide that a L must not do either of the following:
• Directly or indirectly purchase property in an action or proceeding in which such lawyer—or any other lawyer with whom the lawyer is personally or professionally affiliated—is acting as a lawyer for a party or as executor, receiver, trustee, administrator, guardian, or conservator
• Represent the seller in an action or proceeding in which the purchaser is a spouse or relative of the lawyer or another lawyer in the firm, or an employee of the lawyer or the firm
However, this rule does not prohibit a lawyer from participating in transactions that are authorized by and comply with the Probate Code. There is no ABA counterpart to this rule.
Sexual Relationships with Clients
A L must not have a sexual relationship with a C. This rule applies even if the relationship is consensual, and even if the client is not harmed. The only exception is if the sexual relationship pre-dates the lawyer-client relationship.
If the client is an organization, the rule applies to a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters.
CA: The California rule is the same, but includes an additional excep- tion for when the lawyer and client are married or in a registered domestic partnership.
a. No Imputation
A conflict created by a sexual relationship is personal in nature and unlike most conflicts, it is not imputed to the lawyer’s colleagues.
b. Pre-Existing Relationship May Still Cause Conflict
Even where the sexual relationship predated the lawyer-client relationship, the lawyer should consider whether the sexual relationship will “materially limit” the lawyer-client relationship and implicate the general conflict of interest rule for current clients.
DUTY OF LOYALTY AND CONFLICTS OF INTEREST—LAWYER’S FORMER WORK AND SPECIAL ROLES
Ask: Do overlap in function, scope, or information
CONFLICTS WITH L’s FORMER CLIENTS—LAWYER’S OWN
CONFLICT
(L is taking on new representations, waht duty does he owe to former Cs?)
(overview)
a. Using Confidential Information to Former Client’s Disadvantage
b. Opposing Former Client in Substantially Related Matter
c. Opposing Client of Former Firm in Substantially Related Matter.
A. Using Confidential Information to Former Client’s Disadvantage:
lawyer must not reveal a former client’s confidential information (nonpublic) or use such information to the former client’s disadvantage without consent (unless it has become generally known or an exception to the duty of confidentiality applies). VIOLATION OF CONFIDENTIALITY AND LOYALTY.
B. Opposing Former Client in Substantially Related Matter:
*L must not represent one C whose interests are MATERIALLY ADVERSE to those of a former C in SAME OR SUBSTANTIALLY RELATED MATTER to a matter in which the lawyer represented the former client
—UNLESS the former client gives informed consent, confirmed in writing.
Recall: there is also a conflict relating to the current representation if there is a significant risk that the rep will be materially limited by L’s duties to a former C.
C. Opposing Client of Former Firm in Substantially Related Matter.
L leaves firm, L has duties to other Cs of the L’s FORMER FIRM.
*Prohibited without consent if L ACTUALLY ACQUIRED CONFIDENTIAL INFORMATION that is material to the matter while working at the former firm… the L must not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client, unless the former firm’s client gives informed consent, confirmed in writing.
BUT, IF the L did not obtain any material confidential information while working at the former firm, the lawyer is not disqualified from working on the matter.
*. Meaning of “Substantially Related Matter”
Two matters are “substantially related” if
(1) they involve the SAME TRANSACTION OR legal DISPUTE, or
(2) there is a SUBSTANTIAL RISK that CONFIDENTIAL factual INFORMATION that would have normally been obtained in the prior representation would materially advance the client’s position in the subsequent matter. Actual information exchange is not required.
Using Confidential Information to Former Client’s Disadvantage
lawyer must not reveal a former client’s confidential information or use such information to the former client’s disadvantage without consent (unless it has become generally known or an exception to the duty of confidentiality applies).
- VIOLATION OF CONFIDENTIALITY AND LOYALTY.
Opposing Former Client in Substantially Related Matter
(Conflict of Interest Regarding Former Client)
A lawyer must not represent one client whose interests are materially adverse to those of a former client in a matter that is the SAME OR SUBSTANTIALLY RELATED to a matter in which the lawyer represented the former client—unless the former client gives informed consent, confirmed in writing.
a. Meaning of “Substantially Related Matter”
Two matters are “substantially related” if
(1) they involve the same transaction or legal dispute, or
(2) there is a substantial risk that confidential factual information that would have normally been obtained
in the prior representation would materially advance the client’s position in the subsequent matter. Actual information exchange is not required.
Recall: there is also a conflict relating to the current representation if there is a significant risk that the rep will be materially limited by L’s duties to a former C.
Opposing Client of Former Firm in Substantially Related Matter
If the lawyer’s former firm represented a C in a matter and the L actually acquired confidential information that is material to the matter while working at the former firm, the L must not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client, unless the former firm’s client gives informed consent, confirmed in writing.
On the other hand, if the lawyer did not obtain any material confi- dential information while working at the former firm, the lawyer is not disqualified from working on the matter.
CONFLICTS WITH FORMER CLIENTS— FIRM’S CONFLICT
A. EFFECT OF INCOMING LAWYER’S CONFLICT ON FIRM:
B. FIRM OPPOSING CLIENT OF DEPARTED LAWYER:
Generally, if a lawyer is disqualified from working on a matter because of a former-client conflict, their entire firm is also disqualified. However, different rules apply when the lawyer at the center of the conflict has joined or departed the firm.
A. EFFECT OF INCOMING LAWYER’S CONFLICT ON FIRM:
• If L’s conflict comes from association with former firm (meaning, the L worked on or gained information about the matter while at a different firm), the imputation will be cured and others at new firm WON’T be disqualified if:
(1) The disqualified lawyer is PROPERLY SCREENED from the matter (meaning, they do not work on the case, discuss it with those who do, or have access to case files) and
(2) L DOES NOT SHARE IN THE FEE from the matter (receiving a salary or partnership share is fine, but sharing directly in the specific fee is not), and
(3) The former client is given NOTICE to ensure compliance.
CA: California rule provides that screening will ONLY cure the imputation if the disqualified lawyer did not SUBSTANTIALLY PARTICIPATE in the same or substantially related matter while at their former firm.
B. FIRM OPPOSING CLIENT OF DEPARTED LAWYER: (L represented a C in a matter and then left the firm, and the firm no longer represents that C)
Firm CAN oppose former Client, UNLESS:
• The matter is the SAME OR SUBSTANTIALLY RELATED to that in which the formerly associated lawyer represented the former client; and
• At least ONE remaining lawyer in the firm has CONFIDENTIAL INFORMATION that is material to the matter.
NOTE: For ALL Former-client conflcits, FORMER C can waive the conflcit by giving informed consent, confirmed in writing.
CONFLICTS WITH PROSPECTIVE CLIENTS
L owes duty to prospective clients.
A prospective client is a person who consults with a lawyer in good faith about the possibility of forming a lawyer-client relationship with respect to a matter.
Note, however, that a person does not receive the protections of a prospective client if they unilaterally communicate information to a lawyer without any reasonable expectation that the lawyer is willing to discuss the possibility of representation. (bad faith).
A. Opposing Prospective Client in Substantially Related Matter:
L who obtains CI during a consultation with a prospective C must NOT later represent a C adverse to the prospective C in the SAME OR SUBSTANTIALLY RELATED MATTER if the info could be SIGNIFICANTLY HARMFUL to the prospective C, unless BOTH the current C and prospective C provide INFORMED CONSENT, confirmed in writing.
CA: California rule provides that a conflict exists if the L obtained information that is “material” to the current matter; it doesn’t need to be “significantly harmful” to the prospective client.
- If L’s website invites information, and disclaimer is unclear, its still a prospective client.
a. Imputation and Screening: Others at firm NOT disqualified IF:
• Disqualified lawyer took care to avoid exposure to more confidential information that was necessary to determine whether to represent the prospective client,
• Disqualified lawyer is timely screened from the matter and will not share in the fee, and
• Give written notice to the prospective client
REVOLVING DOOR CONFLICTS—GOVERNMENT
EMPLOYEES AND THIRD-PARTY NEUTRALS
KEY: “personal and substantial involvement” in the same matter.
A. Government Work to Private Sector: (L LEAVING GOV)
B. Private Sector to Government Work
C. Prior Involvement as Judge, Law Clerk, or Third- Party Neutral
A. Government Work to Private Sector: (L LEAVING GOV)
A. Government Work to Private Sector: (L LEAVING GOV)
a. Private Work After Government Work on Same Matter
L CANNOT represent a Private C if PERSONALLY AND SUBSTANTAILLY involved in SAME MATTER while in Gov service, UNLESS gov agency consents.
*** “matter” means a specific set of facts involving some specific parties (for example, drafting legislation that applies to the public wouldn’t qualify).
CA: California law prohibits a prosecutor from switching sides and representing or otherwise aiding the defense in the same case.
• Imputation and Screening
Imputation to others at the firm will be cured if:
(1) the disqualified lawyer is SCREENED from the matter and does not share in the fee, and
(2) written notice is given to the government agency to ensure compliance.
b. Conflict Based on Information Gained During Government Service
•If L ACTUALLY obtained Confidential Gov info about a person during their work for gov, then CANNOT later represent a private C adfverse to that person if Info could be used against them (material disadvantage).
- Info means info you got from the gov, not public info.
•Imputation cured with screening.
B. Private Sector to Government Work
After PERSONALLY AND SUBSTANTIALLY working on matter in Private practice, then Gov L CANNOT work on SAME MATTER for government without GOVernment employer’s consent.
[A current government employee must not participate in a matter in which they participated personally and substantially while in private practice or nongovernmental employment, unless their government employer gives informed consent, confirmed in writing]
[ (The govern- ment lawyer is also subject to the normal conflict rules for current and former clients, so they would also need to address their conflict with the former private client in this situation.) ]
C. Prior Involvement as Judge, Law Clerk, or Third- Party Neutral
• CANNOT rep any party as an L in SAME MATTER without consent of ALL parties.
[A lawyer must not represent a private client in a matter in which the lawyer has earlier participated personally and substantially while serving as a judge or other adjudicative officer or as a law clerk to such person, or as an arbitrator, mediator, or other third-party neutral, unless all parties to the proceedings give informed consent, confirmed in writing.]
• Imputation cured with screening and written notice to parties and tribunal
CA: Screening of prior mediator or settlement judge will NOT work. Under the California rule, if the disqualified lawyer’s conflict is based on their prior service as a mediator or settlement judge, the imputation cannot be cured.
