K and Ethic Flashcards
What is the duty that an attorney owes a client with respect to conflicts of interest?
A lawyer must be careful to avoid representation where a potential conflict of interest is likely to adversely affect her ability to exercise independent judgement and professional judgement.
When can an attorney represent a client that will be directly adverse to the interests of another client?
A lawyer must not represent a client if the representation of that client will be adverse to another unless:
(i) the lawyer reasonably believes that representation will not adversely affect the lawyer’s responsibilities to and relationship with other client.
AND
(ii) each client consents after the consultation
What are restrictions against an attorney representing a party against a former client?
A lawyer who has represented a client in a matter must not thereafter:
(i) represent another client in the same or substantially related matter in which the client’s interest are materially adverse to the former client, unless the former client consents;
OR
(ii) use information relating to the representation to the disadvantage of the former client.
What are the requirements regarding the disclosure of fees to the client?
The basis or rate of the fee must be communicated to the client, preferably in writing, before or within a reasonable time after starting the representation.
What is the rule regarding the commingly of funds?
Attorney must hold in trust separate from her own property, funds and property of clients and third persons that are in the attorney’s possession in connection with a transaction.
How should escrow funds or unearned funds be kept?
All funds, including advanced funds ore expenses, shall be kept in a separate bank account, must be kept where the attorney is located or where the party consents and be labeled as a trust account.
Can trust funds be held with other trust funds?
Yes - they may be separately held or maintained or held together with other trust funds.
How are funds held in trust applied?
Only apply to the specific purpose for which they are held. These funds are not subject to offset for attorneys fees.
What happens if an attorney refuses to turn over funds held in trust?
It is considered conversion.
What is the rule regarding an attorney entering into a business transaction with a client?
An attorney should refrain from acquiring a property right or assuming a position that would tend to make her judgment less protective of the client’s interest, unless the client consents.
What are the conditions under which an attorney can enter into a transaction with the client?
A lawyer must not enter into a business transaction with a client or acquire an ownership or other interest adverse to the client unless:
1) The transaction and terms are reasonable and fair to the client
2) The transaction and terms are fully disclosed and transmitted in writing to the client;
3) Client is given an opportunity to see independent counsel; and
4) The client consents in writing.
