Interaction with Client or Other Lawyers? Flashcards
What major ethical obligations are triggered when a lawyer interacts with a client or another lawyer?
Duty of Competence, Duty of Loyalty, Duties Relating to Fees, Duty of Confidentiality, Duty to Communicate
(Clients Love Fierce Counsel)
What is the duty of competence under ABA/CA Rules.
Under ABA: a lawyer must have legal knowledge, skill, thoroughness and preparation reasonably necessary to represent client.
Under CA: lawyer may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence. (this includes duty to supervise work of subordinate lawyer and non-lawyer employees)
How does a lawyer gain competence?
A lawyer may gain competence by 1) associating with a lawyer reasonably believed to be competent in subject matter, or 2) acquiring a sufficient learning and skill before performance, without undue delay.
What is a true emergency?
A lawyer who lacks competence may nonetheless advise or assist a client to extent reasonably necessary when it is impracticable to reach another lawyer.
What is the diligence standard for competence under ABA/CA rules?
ABA: Lawyer must act with reasonable diligence and promptness in representing client.
CA: Lawyer may not intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing client. (diligence is commitment and dedication to clients interest)
What is the duty of loyalty - as it relates to conflicts of interest under ABA/CA Rules?
Under ABA and CA rules duty of loyalty states a lawyer may not accept representation where an actual or potential confilct exists, unless certain criteria are met.
What is a actual conflict?
An actual conflict exiss if the representation is directly adverse to another clients interests.
What is a potential conflict?
A potential conflict exists where there is a “significant risk” that representation of the client will be materially limited by lawyers responsibilies to either 1) Current Client, 2) Former Client, or 3) Lawyers Personal Interest.
What other potential conflict exists under CA Rules?
Under CA rules, a potential conflict exists where the lawyer has either legal, business, financial professional, or personal relationship with a party or witness in the same matter.
How can a lawyer resolve a conflict of interest with their client(s)?
The lawyer may obtain 1) written informed consent with the client, and must 2) reasonably believe he/she can competently and diligently represent the client(s) (each client where multiple)
What is a concurrent conflict of interest (joint clients)?
Under ABA/CA rules if either an actual or potential conflict of interest exists between joint clients, a concurrent conflict exists.
How can a lawyer resolve a concurrent conflict of interest?
Under ABA/CA rules a lawyer can resolve a concurrent conflict if:
1) Lawyer reasonably believes he can competently and diligently represent both clients and
2) Both current clients give “informed written consent”
What is imputed disqualification as it relates to COI? How can a firm overcome this issue?
Under ABA/CA rules, imputed disqualification occurs where one lawyers COI disqualifies an entire firm.
A firm can overcome ID where either:
1) it can show disqualication on the lawyer was due to personal interest, or
2) the lawyer is screened from participation in subject matter of former representation, is given no fee, and former client is notified in writing, or
3) lawyer is leaving the firm
How are COI handled as it relates to business transactions between Lawyer and Client?
Under ABA/CA rules, a lawyer must not enter into a business transaction with client unless:
1) terms are fair and reasonable to client and fully disclosed in writing,
2) client is advised in writing to seek counsel, and
3) informed consent is given in writing
How are COI handled where a client gives a gift to their lawyer?
Under ABA/CA rules a lawyer cannot induce or solicit a substantial gift from a client.
In addition, a lawyer cannot prepare an instrument giving himself a gift, unless lawyer is related to client.
What is the general rule regarding sexual relations with clients?
Under ABA/CA rules, a lawyer may not have sexual relatinoships with their clients, unless the relationship preceded the attorney client relationship.
What other factor does CA consider for COI involving sexual relationships with clients?
Under CA rules, the court looks to whether the client is lawyers spouse or registered domestic partner.
Is a lawyers sexual relationship with client imputed to the firm?
No.
If client is an organization, how does COI rule regarding sexual relatinoships with clients apply?
Under ABA/CA, the rule applies to any constituent of the organaization who supervises, directs, or regularly consults with the lawyer concerning legal matters.
When can a lawyer takes proprietary interest in clients property? (fees)
Under ABA rules lawyer is allowed to take proprietary interest as lien to secure fees or reasonable contingency fee.
Under CA, can lawyer take proprietary interest from client to secure fees?
Generally no. Lawyer may not enter into business transactions with clients that create an adverse interest; such as acquiring ownership interest in subject matter of litigation.
Exception - full disclosure + informed client consent
What COI arises where a lawyer advances money to client in form of a loan?
Under ABA rules a lawyer cannot provide finanacial assitance to client in connection with litigation.
Can a lawyer in any way advance money for client during representation under ABA/CA rules?
Under ABA/CA rules a lawyer may advance litigation expenses (repayment which is contingent in outcome), or paying litigation expenses for an indigent client.
Under CA - lawyer may also lend money to client for any purpose if client gives written promise to repay.
How does a lawyer resolve A COI where there is a former client involved?
If a relationship with former client will “substantially affect” relationship with new client, lawyer must give written disclosure to new client.
Margaritaville & New Slip N Fall
When is a lawyer prohibited to resolve COI with former client?
Where the clients are involved in a substantially related matter; current clients interests are materially adverse to former clients…
Can only continue with former clients written, informed consent.
Issue is client confidences overlapping.
What is the general duty regarding fees by a lawyer under ABA/CA rules?
ABA Rules: A lawyers fees cannot be unreasonable.
CA Rules: A lawyers fees cannot be “unconscionable.”
What factors determine whether a fee is unreasonable?
Factors under ABA: 1) novelty and difficulty of legal issues, 2) time limitation, 3) nature of relationship with client, 4) experience, & 5)
whether it is based on contingency
Rationale - prevent lawyers from overcharging and allows flexibility depending on situation
What factors determine whether a fee is unconscionable?
Under CA: amount in proprotion to value of services, relative sophistication of attorney and client, and clients informed consent to the fee
What are the requirements for a standard fee agreement under ABA & CA rules?
Under ABA: A fee agreement must be preferrably in writing, except for regularly represented clients with same basis or rate.
UnderCA: For non-contingency cases, writing is only required if expenses are reasoanbly foreseeably in excess of $1,000.
What are the requirements for a standard contingency agreement under ABA/CA rules?
Under ABA/CA rules, a contingency fee agreeement must be in writing.
What cases are prohibited from being based on contingency?
Under ABA/CA rules, contingency fee agreements are not allowed for criminal or domestic relation cases (divorce, determining alimony/support, property settlement)
May a lawyer accept fee payment by a third party?
Under ABA/CA rules, a lawyer may accept compensation from someone other than the client, subject to:
ABA - client must give informed consent.
CA - client must give informed, written consent.
What issue(s) arises often where a third party is paying fees for client?
Issue 1 - Interference with Lawyers Indendence/Professional Judgement
Under ABA/CA - there must not be interference with lawyers independence of professional judgement or with attorney client relationship.
Issue 2 - Client Confidentiality
Under ABA/CA a lawyer may not breach confidentiality to paying third party.
However do lawyers handle billing of retainer fees, and what is process at termination of representation under the ABA?
Under ABA rules, a lawyer may not keep unearned fees. Lawyer may recover unpaid fees if fired by client, however not after withdrawal.
What is a true retainer under CA rules?
Under CA rules, a lawyer and client may agree in writing for a non-refundable fee to ensure the lawyers availability to client.
Priority over potential future clients.
Does not have to be in trust account.
Are referral fees allowed under ABA/CA Rules? What about fee splitting?
ABA Rules: Referral fees are generally prohibited. (except nominal gifts). However, lawyers may divide fees with another lawyer (fee splitting).
CA Rules - “Pure referral fees” are premitted. A lawyer may be compensated without invovlement in the matter.
Is Fee Splitting allowed under ABA rules?
Under ABA, fee splitting may only happen between laweyers, and only if:
1) division is proportional to the work completed by each laweyer,
2) the client agrees in writing, and
3) the total fee is reasonable
What is required for fee splitting under CA rules?
Under CA rules, lawyers may split fees if they:
1) enter into a written agreement,
2) client gives written consent, and
3) total fee is not increased
In CA, how can lawyers/clients resolve issues regarding fee splitting disputes?
Client may elect artbitration of dispute of lawyers fees, unless agreed in writing to mandatory arbitrate.
What is the duty to safekeep client property?
A lawyer is a fiduciary, under ABA/CA a lawyer must keep funds in separate trust account.
Can a lawyer commingle funds in trust account?
Under ABA, lawyer may deposit funds and commingle into trust account to extent reasonably necessary to pay bank charges.
What must lawyer do if there is disputed portion in trust account?
Lawyer must keep disputed portion of funds in trust account.
Genearlly, lawyer and client will submit matter to arbitration.
What happens with advanced flat fee for attorney under CA rules?
An advanced flat fee may be deposited in trust account with written disclosure to client.
If flat fee is more than $1,000, the agreement and notice to deposit are written and signed by client.
What is the duty of confidentiality under ABA/CA?
Under ABA/CA rules a lawyer must not reveal information relating to the representation of the client without informed consent.
What are the exceptions to duty of confidentiality under ABA rules? (5)
Under ABA rules: Lawyer may reveal “to the extent lawyer believes necessary to prevent”:
1) reasonably certain death or substantial bodily harm,
2) to prevent crime/fraud likely to cause substantial financil harm,
3) to get ethics advice
4) in lawyers lawsuit against client to collect fees, and
5) if compelled by law or court order
What is the limited exception to the duty of confidentiality under California rules?
Under CA rules a lawyer may reveal to the extent the lawyer reasonably believes necessary:
To prevent a criminal act that lawyer reasonably believes is likely to result in death or substantial bodily harm… however, the lawyer must attempt to dissuade client and inform client that client confidences can be revealed.
*No exception to prevent substantial financial harm, get ethics advice, collect fees from client, or compelled by court order
What is the attorney client privilege, as it relates to duty of confidentiality?
Under ABA/CA ACP is an evidentiary privilege that allows the client to refuse to testify and prevent a lawyer from testifying in court about client confidences. (extends to preliminary consultation)
What are the exceptions to attorney-client privilege? (4 + CA regular)
Under ABA/CA rules, exception to ACP is where:
1) client seeks services to enable future crime/fraud (confidentiality exception)
2) Lawyer sues client
3) Lawyer sues formerly joint clients,
4) competency or intention of testator client is at issue.
CA Rules - also, to prevent substantial bodily injury/death
What is the duty of loyalty as it relates to organization?
A lawyer representing a organization owes a duty of loyalty to the organization, not to its members.
How must a lawyer resolve an issue with a rogue employee of an organization?
Under ABA/CA rules when a lawyer knows that action of a rogue (officer/employee) is likely to result in “substantial injury to the organization,” the lawyer “must”proceed as reasonably necessary in the best interest of the organization.”
What is reporting up?
A lawyer must report to the higher authority (up to highest).
What happens if reporting up fails under ABA/CA?
Under ABA if reporting up fails, and there is “substantial risk to the orgnaization, “the lawyer “may” reveal info rleating to represntation to extent necessary.
Under CA A lawyer cannot violate duty of confidentiality if reporting up fails, except to prevent death or substantial bodily harm.
- If this fails, lawyer has right or may have duty to withdraw
What is lawyers duty to the organization when the organizations interests are adverse to constituents of org?
If lawyer who knows or reasonably should know the orgs interest are adverse to the constituents, has duty to communicate/disclose COI and advise adverse constituents to get independent legal counsel.
Before communicating major COI to all constituents, must get board consent.
constituents the adverse interest, board must consent to communication.
What is the duty to communicate?
Under ABA/CA rules lawyer must communicate with and keep client reasonably informed of all developments in representation.
Ex - Settlement Offers - Lawyer must convey offer to all clients and get agreement (joint clients must agree on division)
What is the scope of representation?
The lawyer must abide by clients decision regarding objectives of representation and reasonably consult with client as to means pursued.
Ex1 - Decision to Settle: Lawyer msut abide by clients decisions on whether to settle.
Ex 2 - Decision to Plea: Lawyer must abide by clients decision to accept plea.
Ex 3 - Decision to Testify: Lawyer must abide by clients decision to testify.
Ex 4 - Decision to Waive Jury Trial - Lawyer must abide by clients decision to waive jury trial.
How may lawyer limit scope of representation?
Lawyer may limit scope of representation if reasonable under the circumstances and client gives informed consent.
Lawyer must not accept employment if he/she knows the purpose of the suit is frivolous.
Note - Is not frivolous to make criminal prosecutor to prove each element of crime.
What does zealous advocacy mean?
Lawyer must zealously advocate for clients interests within the bounds of the law.
How can a lawyer terminate the attorney-client relationship
Under ABA/CA rules, the lawyer can terminate by mandatory or permissive withdrawal.
In either action, the court must give permission in proceeding.
If successful, lawyer must notify opposing counsel, get other counsel, return unearned fees, and return client files
When is termination mandatory under ABA/CA rules?
Under ABA/CA rules termination is madnatory if:
1) representation will result in violation of the rules or other law (CA - if lawyers knows or should know; negligence standard) ,
2) lawyers physical or mental condition “materially impairs ability to represent client.
3) client renders it unreasonably difficult to carry out representation
4) Lawyer is discharged
5) CA - client seeks frivolous litigation (lawyer knows action is without probable cause and for purpose of harrassing)
When is termination permissive under ABA/CA rules?
Under ABA/CA rules, termination is permissive meaning lawyer “may” terminate if:
1) client insists on action lawyer considers repugnant (not in CA),
2) client insists on commiting crime or fraud,
3) client is unreasonably difficult to represent
4) client agrees to termination,
5) Other good cause found by court
6) CA - Client insists on action not warranted under existing law or continued representation is likely to result in violation of rules.
What rules govern malpractice liability under ABA/CA?
Under ABA - Malpractice liability may not be prosepctively limited.
Under ABA/CA, client needs written notice and reasonable opportunity to seek independent counsel before settling malpractice suit.
Under CA
1) criminal D who sues laywer for malpractice must make colorable claim of actual innocence
2) Will or Trust - The intended beneficiary known to lawyer may also hold lawyer liable for malpractice.
