Lawyer Client Relationship--Client and lawyer's personal interests Flashcards
Duty to Client and Lawyer’s Personal Interests
A conflict of interest exists if there is significant risk that the representation of a client will be materially limited by the lawyer’s personal interest For example where the lawyer has personal relationship with opposing counsel, or deeply held beliefs in opposition to the client, or a financial interest adverse to the representation.
Written disclosure for personal relationship
Written disclosure is required when one lawyer is the client of the other lawyer, two lawyers cohabitate, or two lawyers have a personal intimate relationship.
Financial Assistance
A lawyer may not advance money to client or provide financial assistance to client in connection to litigation except for
1) advancing litigation expenses in contingency case (no personal loans) or for an indigent client
2) In CA advancing litigation expenses in contingency cases paying third party from funds collect or to be collected with client’s consent, personal loans after being hired if client agrees to repay in writing.
OR
ABA: Financial assistance: 1) Only to advance in contingent 2) court costs/litigation expenses 3) or indigent clients CA Financial assistance 1) after employment 2) ok to loan if written IOU
Limiting Malpractice
ABA ONLY:
A lawyer may not agree to limit the lawyer’s own liability to the client without advising the client UNLESS CLIENT IS REPRESENTED BY INDEPENDENT COUNSEL.
CAL RULES:
CA do NOT allow a lawyer to prospectively limit liability to a client.
Settlement of claims
A lawyer shall not settle a claim or potential claim for such liability with an unrepresented client or former client unless that person is advised in writing of the desirability of seeking and is gen a reasonable opportunity to seek the advice of independent legal counsel and in CA if they are in fact represented by independent counsel.
OR
Settlement of claims is ok if advised in writing to seek outside counsel.
Sex with clients
ABA:
A lawyer shall NOT have sexual relations with a client UNLESS a consensual sexual relationship existed BEFORE the lawyer-client relationship commenced.
CA the rule does NOT apply to sexual relations with the lawyer’s spouse or registered domestic partner.
Sex with client is ok if preexisting/consensual
Business transactions with a client RULE
A lawyer shall NOT enter into a business transaction with a client or knowingly acquire an interest adverse to the client unless:
The terms are fair and reasonable to the client, nd
the terms are fully disclosed in writing to the client,
CA in WRITING,
the client is advised IN WRITING to see INDEPENDENT Counsel and in CA MUST BE represented by independent counsel, the client gives informed consent essential to the terms including whether the lawyer is representing the client in the transaction.
Solicitation of Gifts/Pecuniary interests
A lawyer shall not solicit any substantial gift from a client or prepare an instrument that gives the lawyer, or a person related to the lawyer, a gift unless the lawyer/person is related to the client.
In CA there is an exception that a client must have been advised by an independent lawyer who has provided a certificate of independent review, or if the gift is fair and there is no undue influence.
Business Transactions with a client –brief
Business transactions are OK if
1) terms fair/reasonable
2) terms fully disclosed in writing to client
3) advised to seek independent counsel
4) informed written consent.
5) CAL Lawyer’s role also disclosed in writing
Gifts Brief
Gifts
L can’t solicit substantial gifts
1) prepare an instrument that gives gifts
2) UNLESS a relative/family
3) CAL: OK if ind. L, fair, or no undue influence
Gifts/ Proprietary Interests Brief
Gifts
L can’t solicit substantial gifts
1) prepare an instrument that gives gifts
2) UNLESS a relative/family
3) CAL: OK if ind. L, fair, or no undue influence
Proprietary interests
1) L cannot acquire
2) Unless lien for fees or contingency in civil case
