PR Flashcards
Duty of Confidentiality
atty must not reveal any information “relating to the representation” of a client. Still liable even if accidental; includes electronic disclosure.
SURVIVES DEATH; can attach before a/c relationship formed;
CA - STRICT; arises from Attorney’s Oath to maintain inviolate the confidence at every peril to himself
*Be skeptical of disclaimers! Must be CLEAR
Broad - applies to anything not generally known, AND to disclosures beyond legal rep including those that could lead to discovery of info related to rep
EXCEPTIONS -
- Consent, Express or implied to do job
- SOS - lawyer defends himself!
a. Malpractice action
b. disciplinary action against you
c. client refuses to pay - Compelled by final court order, ethical duties, or uphold LAW:
a. Reasonably believe necessary to prevent DEATH or substantial BODILY harm
CA - you must first
1. make g/f effort to persuade client not to do act
AND 2. inform client of your decision to reveal confidence
b. Fraud/crimes causing FINANCIAL injury if
1. client is using your services AND
2. disclosure would prevent or mitigate substl financial loss. (if already done, too bad can’t say)
CA - NO FINANCIAL EXCEPTION! Not OK!
Failure to Supervise Employees
ABA and CA - lawyer having direct supervisory authority over a non lawyer must make reasonable efforts to ensure that person’s conduct is compatible with the professional obligations of the lawyer
Duty of Competence/Care
!
atty has duty to competently represent client and act w/ care in handling a client’s legal matters. Requires legal knowledge, skill, thoroughness, and preparation reasonably necessary for the rep
*must be able to learn matter w/o undue expense or delay, or must associate w/ competent atty.
CA - includes duty to supervise work of subordinate attorneys and non attorneys
Breach? discipline by Bar, disqualification in legal matter, malpractice
Attorney Duties
to CLIENT -
Clients Love Fierce Counsel
1. Confidentiality
2. Loyalty
3. Financial Responsibility w/ Client prop
4. Competence
& other reasonable (Diligence, Communication,
to TP - Courts feel differently 1. Candor (Ads) 2. Fairness 3. Dignity/Decorum (to profession)
Duty of Loyalty
undivided loyalty to client. Must avoid conflicts of interest. Cannot breach Confi.
COI
w/ other clients
defn:
interest of self, TP or another client that is Adverse or Materially Limits loyal representation.
ASK: do representations overlap in function, scope or information
Exception -
1. Short term legal services under court, agency, or non profit program. ONLY responsible if KNEW of conflict.
Imputed Disqualification -
any group of lawyers that work closely together or share responsibilities, share each other conflicts
CA - disqualifies, but does not discipline lawyer for imputed conflicts.
Exception to Imputed Disq: Screening Ethical Wall
(consent may be required)
1. previous GOV service
2. adverse parties at PRIOR firm-You leave firm. Firm cannot rep your prior client’s adversary IF
a. Matters subtly related AND
b. any remaining atty has confi material info
CA - 3. Relaxes imputation of Purely PERSONAL or short term legal svc COI.
New Firm. Your conflicts will not be imputed if:
1. timely and effectively screened
2. receive no direct part of fee
3. former client receives NOTICE
and 4. Periodic Certifications of compliance w/ these rules.
ABA Bars Former Gov (atty, clerk, arbitrartor) that
1. worked personally & Substlly on a MATTER from
2. working on same MATTER later in private practice w/o gov consent.
MATTER = specific dispute betw specific parties over specific issues!
*but FIRM OK to work on if
1. gov atty screened
2. he does not share any FEE in matter and
3. former GOV Employer receives NOTICE
CA Version - No gov mentioned, but screens past public sector COLLEAGUES in civil case. Explicitly disqualifying Prosecutor in a case from later working on defense.
Permissible COI
- atty reasonably believes he can competently/diligently represent everyone effectively despite potential/actual conflict if
A. NOT prohibited by Law.
B. Rep is not directly opposing clients
C. Disclosure & Each client gives Informed WRITTEN CONSENT to a conflict judged to be reasonable (inability to disclose info may create consent problem)
CA - does NOT require belief be Objectively reas;
applies to POTENTIAL AND actual conflicts,
and if PERSONAL COI - requires ONLY WRITTEN disclosure (NOT informed written consent)
and
2. screening if necessary
Ex. opposing client in unrelated matter, ok if get ALL parties’ consent.
Ex. new client has materially adverse interests to OLD client, need former client’s consent.
CA - Stat exception - NO COI when lawyer represented policyholder AND his insurance Co. as Joint Clients, and NOW sues them…IF insurer interest is ONLY as indemnity provider.
Pre-Nup
CA - requires separate counsel
?
Gifts
Client must NOT 1. SOLICIT substantial gift from Client, OR 2. DRAFT legal doc for client who is NOT close relative if it provides substl gift to you or your relative.
Limiting Liab
cannot limit your client’s right to report you for ethical/prof violations.
Cannot limit Malpractice liab UNLESS: Client is indie rep’d.
Can only settle after giving WRITTEN advice to Client to seek outside lawyer.
CA - BARS all limits on Malpractice!
Publication Rights
ABA - can NOT sell publication rights to Crim trial BEFORE rep has ended.
CA - maybe can. tolerated if judge feels client clearly understands and consents.
Loans
ABA - forbids financial assistance except for lit costs for indigent client and advance of fees in contingency case.
CA- forbids promising to pay PROspective client’s debts, but allows loans to EXISTING client in ALL matters for ANy purpose w/ WRitten loan agmt.
Business Transactions; Sub of payment
No biz transaction with the client unless:
First Discuss Over Coffee
F - Fair (fair terms for client)
D - disclose (fully disclose terms to client in WRITING)
O - Opportunity to discuss with outside lawyer
C - Consent in writing
CA - just need written disclosure
Atty as witness
ABA - if Atty is necessary witness, he is Barred as counsel UNLESS
1. testimony is UNcontested
or 2. about nature and value of services rendered
or 3. disqualification of the lawyer would work substantial hardship on the client.
CA - less restrictive, can testify in any BENCH trial, and if CLIENT CONSENTS in jury trial
Relationships w/ other parties in case, attys
ABA - cannot have close relationships w/ your adversary’s lawyer unless CLIENT CONSENTS.
Close relationship=immediate family
CA - recognizes other intimates like roommates as problematic, BUT only requires WRITTEN DISCLOSURE. Must disclose any legal, business, or personal relationship w/ any party or witness in same matter.
personal rel- not imputed to colleagues.
TP pays legal bill
no duty to TP; OK if
- Informed Client Consent (CA - IN WRITING)
- no interference w/ lawyers professional judgment or independence.
- Information related to rep is protected under client confi rules;
Atty for company
duty to ENTITY only, even if D/O act to the contrary
Sarbanes Oxley
Fed Law for Securities Attorneys:
- MUST REPORT UP to highest authority
- if reasonably believe necessary to prevent fraud, perjury, or substl injury to ORG or investors, or to rectify financial injury from violation using your svs - MAY REPORT OUT Confi Info to SEC w/o client consent.
ABA - same - MUST REport Up and Permissible report out.
CA - Prohibits reporting OUT, but federal Preemption
Atty Contracts for services MUST include
NON CONTINGENCY - ABA - 1. how fee is calculated 2. what services covered 3. Lawyer/Client duties
CA - ALSO requires WRITING, Unless
1. FEE is under 1k or 2. w/ corp client or 3. routine svcs for regular client or 4. emergency or impractical
CONTINGENCY cases -
ABA - (NO Crim cases, or domestic Relations)
must be WRITTEN and signed by client and have:
1. Atty % of recovery
2. expenses to be deducted from recovery
3. whether % taken before or after expenses
CA - also requires 4) how work NOT covered will be paid and that 5) atty fees are Negotiable.
(domestic relations OK if don’t promote dissolution).
Early termination? Atty can later recover % of work done.
Fees
ABA -
must be REASONABLE re: labor, novelty, difficulty, skill, timing, result, experience and other demands;
-Encourages Arbitration if fee disputes
CA - must NOT be UNconscionably High;
• CAN charge 2 clients for same time if
1. fee charged to each NOT unconscionable for rate
2. atty clearly disclosed billing practice at outset
3. obtained client consent
-REQUIRES Lawyer to participate in Fee Arbitration if client sues and Requests it…
Fee Spliting
A. May split w/ attys outside firm if
- total fee ethical 2.written disclosure &
- client CONSENT.
- ABA division in proportion to work done, unless jointly responsible
CA - ok to pay NON pro rata amount if Fee NOT unconscionable and client CONSENT.
B. NO sharing w/ NOn lawyers Except
- death benefits to deceased lawyer estate
- salaries to staff
- sharing w/ non profit org that employed/recommended lawyer
- Qualified referral service usual charges
Non lawyers
cannot be partners, SH, officers, or control/direct atty judgment.
Reciprocal referrals w/ other PRofs OK if
1. NON EXCLUSIVE and 2. disclosure to client.
Client funds
duty to safeguard. Put in Client interest bearing Trust Acct. Do not borrow/commingle.
-Smaller amt for short time - Pooled client trust OK, interest goes to state bar
- Claim on client’s prop or nonpayment? Must withhold disputed portion in client trust account until resolved;
- keep records, notify him, pay promptly
CA - requires you keep records of client prop for 5 years after final distribution
Insurance
ABA suspension (w/o discipline) for failure to report whether you carry insurance on registration.
CA - no insurance? MUST disclose to client in writing at time of engagement if more than 4 hours of work.
Exceptions - Gov and inhouse don’t have to have, but must disclose.
Duty of Diligence
diligently, promptly and zealously pursue your case to completion
Accepting/reject
should accept as duty to public/profession: if
1. case of defenseless/oppressed (if only reason not to is selfish)
and
2. Fair share of work w/o charge
MUST reject if would violate a law or ethical rulet to take it. or not Competent.
CA - cannot discriminate when deciding whether to take
Scope
Client decides Substance, Lawyer decides strategy
Withdrawal
MUST W/d
-if continuing would violate law or ethical rule
-Client Used Artty to commit Past Crime/Fraud
(NOISY Withdrawal -ABA, but still can’t reveal confi unless to under exception)
-MUST reveal confi if revealing info is only way lawyer can avoid assisting crime or fraud
MAY W/d IF:
1. convince ct of GOOD CAUSE AND will not cause client undue delay or disruption.
(client illegality, repugnant actions, unreas $burden)
2.
CA - allows w/d if client breaches fee/expense agmt!
- Give timely notice
- return unspent fees/advances AND
- return property & material papers of client (everything the need to pursue EVEN WORK PRODUCT!)
CA - forbids witholding materials to get paid!
Sex
ABA - NO consensual sex w/ client unless preexisting sex relationship
CA - preexisting sex ok, but also allows new sex relationship too w/ caution.
Commercial Speech
RESTRICTIONS OK if IS
- gov asserts SUBSTL interest
- Reg directly advances interest
- NT
SOLICITATION
1. No direct targeted mail to wrongful death victims w/in 30 days of accident
ADs
2. No false/misleading ads; NO UNJUSTIFIED Expectations
CA - Presumption that Guarantees, Warranties, or Predictions of result are IMPROPER. NO Testimonials or Endorsements UNLESS EXPRESS DISCLAIMER they are not GWP!
- No claim of speciality unless Certification from approved Org disclosed in ad. Need 4 Es:
Experience, Exam, Education, Evaluations. - Cannot harass or solicit someone who rejects. Tarted mail ok w/in guidelines. (Labeled an Ad, if proper: dramatization, impersonation)
* *MUST identify 1 lawyer responsible for ad. keep records of content and placement of ad for 2 years.
CA Statutory VIOLATIONs -
1-guarantee or warranty of outcome
2-words or symbols that suggest quick cash/settlement
3-impersonation of lawyer/client w/o disclosure/label
4-dramatization of accident w/o disclosure/label
5-contingent fee offer that does not warn client who loses he must pay
CA Rebuttable Presumption Ad is False/misleading
- communication delivered to potential client in hospital suffering from phys or mental stress
- mailings that seek paying work not labeled AD
- communications w/ testimonials/endorsements w/o disclaimer they are NOT promise about results
solicitation
individualized contact w/ lay person
Rule: do NOT seek professional employment for PECUNIARY gain by initiating LIVE or phone contact w/ specific person w/o prior prof, personal or family relationship (FREE offer oK)
ABA - electronic chat is violation
CA - only live or phone is violation
CA - PRESUMPTION of improper communication at scene of accident or en route to hospital to potential clients you should KNOW are not in good phys/mental state to exercise reas judgment.
Duty of Candor
no conduct involving dishonesty, fraud, or misrep. These duties CAN trump confi and loyalty. Ends w/ proceedings/time for appeal run.
-present facts/evidence truthfully, must correct prior falsehood you made; must not falsify evidence
PERJURY -
CIVIL - MUST refuse to call any witness if you KNOW he will commit perjury
If you only reasonably believe, you MAY refuse witness.
CRIM - 5A right to testify and 6A right to effective counsel -
IF KNOW D will lie, take reas remedial measures:
1. counsel him to tell truth
2. try to withdraw
3. last tell judge.
-withdrawal not granted?
CA - Narrative fashion OK for D but do not further deception.
ABA - must not lie to people or mislead as to interests; cannot violate legal right to obtain evidence, or rule 11 delay, burden, embarass
STATE law truthfully. no frivolous claims.
Duty to produce evidence (fairness)
-must not alter, destroy, or conceal evidence
must not suppress anything you or client has obligation to reveal or produce, regardless of duty. may NOT obstruct access to or tamper w/ fruits or instrumentalities of crime
May retain evidence for Reasonable time to prepare client case, conduct tests so long as WON’T alter evidence. Then must turn over
CA - must NOTIFY authorities immediately, but can still keep to test
Prosecutor Duties AND response
special duty to timely disclose evidence favorable to defense
higher ethical obligations than other attys; need Probable cause
Must NOT make comments that have SUBSTL LIKELIHOOD OF HEIGHTENING PUBLIC CONDEMNATION OF ACCUSED.
-Reg Atty may respond to press and public’s right to know, but must avoid out of ct statements that have SUBSTANTIAL LIKELIHOOD OF MATERIALLY PREJUDICING THE CASE.
UNLESS -
matters in public record or routine booking info, warning public, informing of investigation,
RESPONSE - statements required to PROTECT from SUBSTL prejudice form RECENT PUBLICITY NOT self initiated.
Duty of Fairness
behave honestly in all dealings in and out of practice; promote public confidence in integrity of profession.
Lawyer must not alter, destroy or conceal evidence.
Documents sent inadvertently
Realize mistaken doc? MUST STOP READING and NOTIFY opposing counsel. may NOT copy, disseminate, or use to advantage.
-METADATA - may mine docs intentionally sent.
Communication w/ REp’d parties
May not communicate w/ represented party w/o Attorney CONSENT. Including anyone who might Bind or be imputed to Organization or constitute Admission on its part.
CA - limits this to PARTIES, rep’d by counsel;
w/ jury
before/during trial CANNOT talk to impaneled juror.
AFTER - may interview
CA - must tell them they can refuse interview and have copy of any resulting ct declaration
-no trickery in front of jury
duty to expedite
ABA - firm duty to expedite
CA - must not delay case to harass adversary, or for own personal gain/convenience
REGS
-no unauthorized practice of law. (can be pro hac vice) or limited circs…= beyond capacities and knowledge of lay persons, professional judgment of lawyer
Multi State Atty -
temp practice by OOS atty in good standing ok if:
1. associated w/ local atty
2. svcs relate to ADR
3. matter ARISES out of matters REASONABLY RELATED TO LAWYER”S practice in a state where she is admitted
AND
4. forum does not require pro hac vice.
CA - more restrictive rules re: OOS attys (must register w/ bar, pay dues, get CLE, and be subject to CA ethics rules)
ABA
-lawyers must report to ABA if legal or non legal action by atty/judge RAISES SUBSTANTIAL QUESTION AS TO THAT PERSON’S HONESTY, TRUSTWORTHINESS, OR FITNESS AS LAWYER
vs
CA -
1. does NOT require external reporting but can discipline for knowing and doing nothing to prevent it.
2. Also requires self reporting of being charged w/ certain crimes, civilly liable for breach fid duty, disciplined in another juris, or sometimes malpractice/sanctioned.
Subordinate lawyers
If under control of supervising atty who ratifies conduct:
Sub subj to discipline if CLEAR violation, but
NOT if debatable problem
Supervisor problem either way if ratified or KNEW of conduct and failed to take action.
Managing Prtr, must also make reas efforts to ensure firm comports w professional obligations, including non lawyer EEs.
