Lawyer's Duties Flashcards
What are the 1.6 (a) guidelines?
- A lawyer shall not reveal anything related to a client matter from any source
- Lawyer may reveal (implicit exceptions):
o Information so long as listeners could not possibly ascertain client identity (resolve close cases in favor of non-disclosure)
o Generally known information - Be particularly careful with adverse information
What does the restatement say about disclosure?
says it is okay to disclose as long as there is no adverse effects
Whether a lawyer in the same spot would find issue with disclosure
What is and are the exceptions to 1.6?
- Client gives informed consent: communicated risks, benefits & alternatives
- Impliedly authorized to carry out representation
Ex: Petition: alleging facts, examining witnesses at deposition - OR exception under 1.6(b)
- Client says he’s going to sell kilo of cocaine. You tell DEA. Are you subject to discipline?
No under Texas Rule 1.5(c)(7) – may reveal to prevent future criminal act [note: broader than MRPC 1.6]
- Client says he’s going to sell kilo of cocaine, you don’t tell anyone. Discipline?
No – 1.5(c)(7) may so is not mandatory
- Client tells you he killed his girlfriend in a jealous rage. May you reveal this information?
No – 1.5(c)(7) – not a future crime, past crime so cannot reveal
1.6(b) A lawyer may reveal information relating to the representation of a client to the extent the lawyer reasonably believes necessary:
(1) to prevent reasonably certain death or substantial bodily harm;
(2) to prevent the client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance of which the client has used or is using the lawyer’s services;
(3) to prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services;
(4) to secure legal advice about the lawyer’s compliance with these Rules;
(5) to establish a claim or defense on behalf of the lawyer in a controversy between the lawyer and the client, to establish a defense to a criminal charge or civil claim against the lawyer based upon conduct in which the client was involved, or to respond to allegations in any proceeding concerning the lawyer’s representation of the client;
(6) to comply with other law or a court order; or
(7) to detect and resolve conflicts of interest arising from the lawyer’s change of employment or from changes in the composition or ownership of a firm, but only if the revealed information would not compromise the attorney-client privilege or otherwise prejudice the client.
Must a lawyer make reasonable efforts to a prevent the inadvertent or unauthorized disclosure of or aunothorized access to client’s info?
yes. under 1.6(c)
If reasonably certain of death or SBI when does an attorney have to disclose information?
TDRPC: causal event needs to be a crime/fraud
MRPC: disclose only if reasonably certain
What are the exceptions for potential future client acts resulting in bodily harm or death.
- MRPC 1.6(b)(1): allows disclosure to prevent SBI or death, whether or not crime or fraud
- TDRPC 1.05(c)(7): allows disclosure to prevent future crime or fraud
- TDRPC 1.05(e): requires disclosure of confidential information where it is reasonably certain that doing so will prevent client crime or fraud that would result in SBI or death
Ethics Rules Allowing Revelation of Client Crimes or Frauds to Prevent, Mitigate, or Remedy Harm to Others
Elements of 1.6(b)(2)-(3)
- Reasonable certainty client’s misconduct results in substantial financial or property injury
- Client used the lawyer’s services in committing the criminal or fraudulent act
- Purpose in revealing is preventing, mitigating, or rectifying harm from act
What rule governs transactions with persons other than clients? and what does it say?
(a) make a false statement of material fact or law to a third person; or
(b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.
What are the exceptions to Rule 4.1 Truthfulness in Statements to 3rd parties
-To obtain ethics advice Permitted. 1.6(b)(4)
To collect a fee or defend claims against lawyer Permitted. 1.6(b)(5)
To comply with other law or court order Permitted. 1.6(b)(6)
To check for conflicts when a lawyer changes firms Permitted. 1.6(b)(7)
Under what rule can lawyers disclose enough info to new firms to check for conflicts?
1.6(b) (7)
What rule governs competence and what does it say?
Rule 1.1 Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
- Requisite ability
- Adequate conduct in the representation
Two questions:
- Should you take the client?
- How should you handle the representation?
