Lawyer Client Relationship Issues Checklist Flashcards
L/C Relationship Issues Checklist
Duty of Loyalty
Duty to Communicate
Scope of Representation
Duty of Confidentiality
Attorney/Client Privilege
Fees
Duty of Competence and Care
Duty of Diligence
Duty to Safekeep Property
Withdrawal
“Lawyers communicate really carefully, promising full competence during settlement work”
Professional Integrity Issues List
Advertising/Solicitation
Unauthorized practice of Law
Liability for another L’s conduct
Duty of Fairness
Reporting Ethical Violations
“LUDA Raps”
Who is a prospective client?
A person who consults with L about the possibility of a C/L relationship with respect to a matter
Duty of Diligence ABA
L shall act with reasonable diligence and promptness in representing a client
Duty of Diligence CA
L shall not intentionally/recklessly/repeatedly fail to act with reasonable diligence in representing C.
Reasonable diligence means L
1. Acts with commitment and dedication to interests of C
2. Does not neglect or disregard a legal matter entrusted to L
Scope of Representation
L decides legal strategy
C decides substantive decisions
Duty of Loyalty general rule
A lawyer has a duty of loyalty to his client, which requires him to place the clients interests above all other interests and avoid conflicts of interest “COI”.
When does a COI occur?
- The representation of one C will be directly adverse to another C
or - There is a significant risk the representation of C will be materially limited due to a personal interest of L, interests of another client, or interests of a third party
ABA Rule: L can represent C despite COI if
- Reasonable belief L can provide competent and diligent representation to each affected client
- Each C gives informed consent confirmed in writing
- Clients not asserting a claim against each other
- Representation not prohibited by law
CA Rule: L can represent C despite COI if
Same as ABA rule but also has specific exception if L has any relationship to a party or witness
Sexual relations with client
L shall not have sexual relations with client unless relationship existed before the L/C relationship began
Business Transactions with Clients
L shall not enter into a business transaction with C or knowingly acquire an interest that is adverse to C
EXCEPTION
1. Fair/reasonable
2. Terms disclosed in writing (CA: L’s ROLE must also be disclosed in writing)
3. C advised to seek outside counsel
4. Informed consent
Lawyer and gifts
L shall not
- Solicit a substantial gift from C
- Draft a legal document for C that contains terms that gives L, or a family member of L, a substantial gift
EXCEPT: CA allows gift if C advised by independent lawyer AND certificate of independent review provided OR
Gift is fair + no undue influence
Rule: L takes proprietary interest
L shall not acquire proprietary interest
Unless lien for fees or contingency in civil case
ABA: Competence
L shall represent C with legal knowledge, skill, thoroughness and preparation reasonably necessary for representation
ABA: If L does not have sufficient knowledge, L may still competently represent C if
- L associates or consults with another competent L
- L acquires necessary skills to become competent before performance is due
- L refers matter to a competent L
OR IN AN EMERGENCY
CA: Competence
L must not intentionally/recklessly/re[eatedly fail to provide legal services
L’s duty to be competent applies to:
1. Learning skill
2. Mental, emotional and physical ability
L represents new C to detriment of Former C
L shall not represent a new C in the same or substantially related matter in which the new C’s inerests are materially adverse to the interests of a former C
Exception: Informed consent, in writing
COI: Imputed Firm Disqualification
GR: A conflict for one L is imputed to all other attorneys in the firm, which prevents the other attorneys from representing the client.
Except
- The original conflict is based on a personal interest of L and does not present a significant risk of materially limiting the representation by other attorneys
OR
- The conflict is based on a firmer C at prior firm
- The disqualified lawyer is likely screened
- C provided written notice and certification of compliance
CA EXTRA REQUIREMENT: Prohibited L did not substantially participate in the same or substantially same matter
What is the rule for when L leaves the firm?
The firm is allowed to later represent a person with interests materially adverse to those of a C represented by lawyer and not currently represented by the firm
EXCEPT: Matter is the same or substantially the same AND any L remaining in the firm has confidential info material to the matter
Can a client waive disqualification by imputation?
Yes, C can waive with informed written consent
When must a lawyer report misconduct to a higher authority when there is a COI with a corporation client?
If L knows (CA reasonably knows) that an officer/ee with the org has intent or is actually engaged in action that is a violation of a legal obligation or law that is imputable to the organization, the L shall report UP
EXCEPTION
L does not have to report up if L reasonably believes in best interest of the organization to do so
COI: L represents corporation/organization
IF HIGHER AUTHORITY FAILS TO ACT AFTER REPORTING UP L CAN…..
If HIGHEST authority fails to act and L reasonablly believes the violation will result in substantial injury to the org, then (ABA only) L may report out, even if confidential if necessary to prevent injury to the organization
CA EXCEPTION:
Under CA, L may not report out if it will violate duty of confidentiality. L should instead
- Urge reconsideration
- Withdraw
(In CA L may only report out if necessary to prevent a criminal act likely to result in death or SBH)
A/C Privilege
Protects
1. Confidential communication
2. Made during an A/C relationship
Privilege belongs to C only and applies even after death
(CA: Until C died and the estate is fully distributed)
The privilege may be used in both civil and criminal cases. C must have intende for the communication to be confidential, and the communication must have been with reg
HAS EXCEPTIONS SEE OTHER CARD
