PEE ARRRR! Flashcards
Lawyer Client Relationship
Lazy Cows Shoot Confident Atty’s From Cars. Digital Safety Restraints Worthless
Loyalty Communication Scope Confidentiality Atty-Client Privilege Fees Competence Diligence Safekeeping Relationships Withdrawal
Loyalty
A lawyer has a duty to maintain the interests of his client above all other interests and to avoid any conflicts of interest
11 Loyalty Issues
Con-Agra Insures Business Farms So Property Advances Compensate Organizations Nicely
Concurrent Conflict Aggregate Settlements Insurance (CEC) Business Transaction Former Govt Employee Solicitation of Gifts Proprietary Interests Advances to Client Compensation from Third Parties Organizational Clients No Limiting malpractice liability
Concurrent Conflicts
c, c&a, exept: ABA, exept: CEC
Generally, a client can not represent a client where there is a conflict of interest. Exists if:
Current Clients - the representation of one client is directly adverse to another client
Current Client and Another - there is a significant risk of that the representation of a client will be materially limited by the responsibilities of another client, former client, third person, or personal interests
Exception ABA - can still represent if : reasonably believes can provide competent and diligent rep without adverse effect, not prohibited, not claims against each other, IWC
Exception CBA - can still rep if: IWC, written disclosure of lawyer’s relationship with a party or client in the same matter that would materially affect rep. (NO consent necessary if no problem)
Aggregate Settlements
A lawyer who represents two or more clients shall not participate in making an aggregate settlement (criminal guilt or pleas) unless each client gives IWC
Insurance (CEC only)
L is permitted to represent both insurer and insureds whereby the insurer has the contractual right to unilaterally select counsel. No conflict
Business Transaction
L shall not enter into a business transaction with a client or knowingly acquire an adverse interest unless: terms fair terms fully disclosed advised to seek independant counsel IWC that L represents client
Former Govt Employee
L shall not represent in a matter in which L participated personally and substantially unless IWC from agency
Solicitation of Gifts
ABA: shall not solicit any (or prepare any instrument to convey) substantial gift from a client unless the lawyer is related
Ca Rule: A lawyer may accept a gift if it is fair and and there is no undue influence
Proprietary Interest
L shall not acquire any proprietary interest in the cause of action or subject matter of litigation unless:
Lien to secure fees
Reasonable contingency fee
Advances To CLient
ABA: L shall not provide financial assistance to a client in connection with litigation unless:
contingency. court costs and litigation expenses dependent on outcome of case
indigent: court costs and litigation expenses
CA: may lend after employment if in writing
Compensation from 3rd PArties
L shall not accept compensation from 3rd parties unless:
informed consent by client
no interference L/c relation or L’s pro. judgment
info is confidential
Organizational Client
L employed by an organization represents the organization must act in the best interest of the organization.
report to higher authority - L knows someone in org. who is engaged in an action that will cause substantial harm to the organization then: refer to higher authority unless it’s no good,
failure to act by highest authority:
ABA: may reveal information if necessary to prevent the injury
CEC: may not disclose outside of org. but urge reconsider or resign.
Can represent individuals of company if all four exceptions to conflict of interest are met
No Limiting malpractice liability
ABA: may not limit unless advice to seek independent counsel is sough in writing
CEC: may not prospectively limit liability
Imputed DQ
occurs when any conflict of interest occurs and results in all atty’s being disqualified from representing client
UNLESS:
-based on personal interest and does not represent a significant risk of materially limiting representation
-former client from a prior firm and atty is timely screened from participation and client is provided written notice as well as compliance with screening procedures
-client may waive with IWC
L terminates firm
when L has terminated an association with a firm, the firm may thereafter represent a person with materially adverse interests to a previous client of that lawyer unless
matter is substantially the same, and
any remaining lawyer has confidential info that is material
Duty to Communicate
L shall promptly inform the client of any decision that affects the client’s informed consent as well as reasonably consult with the client and keep him informed if the status of the case
Scope of Representation
L may take actions to represent the client but must abide by client’s substantive decision to settle/ plea./waive jury trial after the lawyer has consulted with the client. :L is responsible for legal strategy
Duty of Confidentiality
exceptions
Inigo ignites revolution por mexico, so equality conquers
L shall not reveal information relating to the representation of a client UNLESS:
informed consent
impliedly authorized (ABA)
reasonably believes disclosure is necessary to prevent
death or serious injury (CA optional but must first try
to dissuade and inform client of L’s ability to narc)
prevent from committing a fraud or crime that will
result in injury to persons or financial interest of
another or uses L to do so (ABA only)
mitigate or rectify substantial injury to the property
or financial interest of another or uses L to do so
(ABA only)
secure legal advice about compliance (ABA only)
establish a claim or defense on behalf of L if there is a controversy between L and client (ABA only)
comply with another law (ABA only)
Attorney Client Privilege applies to testimony ONLY
c, cc, p, h, d, e
A client has the right not to have anything disclosed any confidential communication between the attorney and the client relating to the professional relationship.
corporation - can be client as well as individual
fed, applies to agents/employees if authorized
CEC if natural person who speaks for the corp., or
employee who did something to cause corp to be
liable
confidential comm - must be intended to be confidential
3rd party may waive
not apply to physical evidence
CEC: can stop eavesdroppers from revealing
professional services - must be made for the purpose of facilitating professional services
holder- client holds, La sserts
duration - FED - after death, unless will contest
CAL - dead client’s estate has been fully distributed and personal rep. discharged
exceptions- atty-client privilege does not apply:
further crime of fraud
dispute between lawyer and client
CEC- reasonably believes the disclosure is necessary to prevent a crime that is likely to death or serious injury
Fees
free crusty avocados can distinguish shit from rain
All fees must be reasonable (ABA) or not unconscionable (CEC) . Factors are TENTFLAW:
time- imposed by client or circumstance
experience - reputation and ability of L
nature - of relation with client
time and labor- novelty, difficulty, skill involved
fee- how much do other L’s charge in area
likelihood - of not being able to do anything else
amount involved - and results obtained
whether fixed or contingent
Fee agreements
Must state
how fee is calculated
general nature of the legal services
responsibilities of L and client
CAC Rule
All fee agreements over $1000 to be in writing unless the client is a corporation
agreement made in an emergency
client waives the writing in writing
services are for a previous client for similar services where the fee can be implied
Arbitration
CA requires L to submit to arbitration for fee disputes
ABA only encourages
Contingency Fee Agreements
A contingency fee requires :
writing
signed by client (CA requires both sign and copies)
method by which fee is determined
state litigation and other expenses to be deducted
state whether expenses deducted before or after the contingent fee is calculated
CA must state fee is negotiable
no contingency for domestic or crim. (CA as long as it doesnt promote divorce)
Division of Fees Between L’s
only if
proportionate,
client consents in writing
reasonable (CA not unconscionable)
Sharing Fees with non-L’s
NO!
No finder’s fee
A L shall not hive anything of value to a person for recommending the L’s services unless an “official” referral coompany (CA can as long its not with an understanding that it will not continue int eh future
Reciprocal Referral Agreement
Fine as long as it is not exclusive and client is informed
Duties of Competence and Care
L shall represent his client with the knowledge, skill, thoroughness and preparation necessary to adequately represent his client. (CA includes diligence and mental, physical and emotional ability and can consult or learn what is needed to become competent)
Duty of Diligence
L shall act with reasonable diligence and promptness in dealings with a client
Safekeepin Property
L must keep client’s property safe and separate and must keep records for five years
Sexy Times with Client
ABA: shall not unless preexisting
CA rules: fine unless coercion, condition of representation, or cause to perform incompetently
Withdrawal
MANDATORY -
will result in violation of professional conduct
mental or physical condition materially impairs ability
discharged (ABA only)
L knows or has cause to know that client is bringing an action without PC or to harass or maliciously injure a person
PERMISSIVE
can do without material adverse affect
L reasonably believes that client is
