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;
