PR Flashcards
Loyalty
An attorney owes a duty of loyalty to the client, including the duty to put the client’s interest ahead of her own
Fairness to Opposing Counsel
An attorney owes a duty of fairness and good faith when dealing with opposing counsel
Scope of Legal Advice
An attorney has a duty to make all decisions re a case’s legal analysis and issues re procedure and strategy.
The client has a responsibility to make decisions re substantive issues of his case, including whether or not to go to trial, whether or not to accept a settlement, etc.
Duty of Competence
An attorney owes a duty of competence in her practice to her clients
knowledge, skill, preparation, thoroughness, training
CA: L subject to discipline if intentionally, repeatedly, and recklessly undertakes representation she knows is not competent to handle
Maintain Legal Activities/Conduct
Decorum
An attorney has a duty to encourage and insist upon her client to maintain the law and not deliberately tell lies or do any illegal activity
Withdrawal - Permissive
If an attorney cannot be adequately represent a client bc of his repugnant conduct, she must tell the client to refrain from such conduct. If the client does not refrain, she may decide to withdraw permissively from representing the client.
ABA: if based on repugnancy, she must tell the court specific reasons
CA: if based on repugnancy, she may not divulge specific reasons if at all possible, but try to describe that she cannot represent client bc of repugnant conduct
Think of unreasonably difficult clients
Confidentiality
An attorney has a duty to maintain a client’s confidential information even after representation ends
This duty begins even before representation begins and ends even after death
Obtaining a Pecuniary Interest in the Outcome of a Case
Under the ABA, a lawyer cannot obtain a pecuniary interest in the subject matter of a case other than in the case of a contingency fee arrangement or an attorney’s lien. However, in CA, attorneys’ liens are impermissible.
Misappropriation of Confidential Information
Loyalty
An attorney has a duty to keep client information confidential and to not act on that information for personal and/or illegal gains
To Prove Malpractice
Client would have to show that lawyer owed a reasonable duty of care, lawyer breached, causation of injury, and actual injury occurred as a result of the malpractice
Organizational Clients
Relationship/Scope
Under the ABA and Ca, if an attorney is dealing with an organization, it must act within the best interest of the organization. Duty is to the officers, directors, and SHs
Attorney sitting on Corp. Board
Loyalty
Under the ABA and CA, an attorney may not sit on a board of an organization, especially one he is representing, except if the organization of a non-profit
DOL/Conflict of Interest
Loyalty
If the interests of a former, current, or TP client materially limits the attorney’s representation, then the attorney must inform the client of an actual or potential conflict
If the conflict becomes an ACTUAL conflict, must gain consent in writing
Duty of Care
Under the ABA and CA, an attorney has a duty to act in the best interest of the client and must carry out the representation zealously and diligently
Duty to keep client informed
Under the ABA and CA, an attorney has a duty to keep their clients reasonably informed about the case
Limiting Liability Agreements
When L is contemplating entering to agreement that will limit their liability, the L must withdraw or
- advise the client in writing to seek independent counsel and give them a reasonable opp to do so
- disclose the terms of agreement in writing to the extent he can understand the limiting liability
Sexual Relationships - ABA and CA
The ABA prevents a L from entering into sexual relationships with client unless the relationship existed prior to the commencement of the action. Also prohibits if L allows relationship to affect representation
CA allows SRs unless obtained as a condition, by coercion or undue influence, or affected representation
Continued Representation despite competence - ABA and CA
If L does not have competence, can still represent if
- learns necessary material without undue cost or delay
- associates w an experienced attorney
- emergency situation
Fee Arrangement - ABA and CA
ABA: If L has not regularly represented client, L must communicate the fee preferably in writing within a reasonable time after start of action
CA: Fee arrangement must be in writing
Reasonable Fees based on…
Based on:
- difficulty in the matter
- the prevailing rate in the locale
- the length of the case
CA: does not allow unconscionable fees
Contingent Fees - ABA and CA
Must be in writing and state:
- how fee is calculated
- what expenses are to be deducted
- whether the contingent fee is on the net or the gross
- what the client would have to pay if they lose
Client Trust Account
A L must hold a client’s funds in a separate trust account. Any disputed amount can stay in the trust but all other amounts must go back to the client
Conflicts of Interest
A conflict of interest arises when there is a potential for the lawyer to not have the ability or capability to act in the best interests of their client, due to personal, professional, or inter-client conflicts
Despite COI - ABA
If one reasonably believes that despite the conflict they can still uphold their duty, they must disclose the conflict to the client and get written and signed acceptance
COI - CA
If there is a personal COI for the lawyer, the lawyer must only give the client written disclosure of the conflict
If ripens to actual conflict, then need to re-disclose with client for approval
Disclosure of Imminent Death or Harm
If a L finds out that their client is about to engage in the death or substantial bodily harm of another…
ABA: L may breach to inform appropriate authorities
CA: L may not immediately breach, first try to counsel client, then inform they will breach, then if no action or statement, L may breach
Disclosure of Confidentiality re Financial Harm
ABA: L may breach only if client is committing acts with or under L’s control - has to be serious financial loss
CA: L may not breach DOC
Retainer Agreement
ABA: require that the agreement specify the terms of the agreement, fee, etc.
CA: requires disclosure and written informed consent of the agreement
Post-withdrawal - Evidence
After withdrawing from a case, the L must return the evidence, documents and other information pertaining to the clients case, to the client (ABA and CA)
L Testifying - Attorney/Client Priv
A L may not be compelled as a witness to testify about matters that are protected by A/C Priv
A/C Privilege
A/C privilege provides that all confidential communications between an attorney and their client are privileged and therefore may not be disclosed by the attorney without consent of the client or another applicable exception
Confidential info only extends to the parties who are represented or parties to whom the L may need to assist them in their representation
A/C Scope - Death CA
Unlike FRE, in CA, the A/C scope ends when the client’s estate is settled
Attorney Work Product
L’s work product is privileged information. It is not admissible unless the opponent can show a necessity for the information inside as it is not available by any other means
Financial Responsibility - Reasonable Fees, Conscionable Fees
ABA: L fees must be reasonable in light of the L’s skill, experience, and time to prep for case
CA: fees must not be unconscionable
Non-Contingency Fee Agreements - writing
ABA: fee agreements are not required to be in writing
CA: must be signed in writing if more than $1000
Duty of Candor and Fairness
Evidence to the court
Under both CA and the ABA, an attorney must not knowingly offer false evidence to the court. An attorney also has a duty to correct a previous incorrect or false statement offered to the court
Duty of Competence - subordinate Ls
CA: the duty of competence also includes the duty to supervise subordinate Ls and non-Ls
Contingency Fees in Crim cases
ABA: not allowed
CA: allowed
Advancing litigation costs
ABA and CA: an attorney is permitted to advance litigation costs of indigent clients so long as the client agrees in writing to repay the attorney
CA: attorney may lend money to client for any purpose so long as the client agrees to repay the attorney
PR - Discharge and Fees
ABA and CA: When a L is discharged, either by the court or the client, the attorney is entitled to payment for the reasonable value of his services
Sharing of Law Practice with a Non-L
ABA and CA: an attorney may not enter into a partnership with a non-L if it solely operates to offer legal services
Only between lawyers exclusively
CA - Notification of Non/Disbarred A work
CA requires an attorney to notify the bar association about employment of disbarred attorneys working as legal clerks and that the scope of their tasks would be
Unauthorized Practice of Law
Under ABA and CA, an attorney should refrain from assisting a non-L in the unauthorized practice of the law
Providing legal advice, quoting a legal fee, representing a client in a legal fee without legal counsel present
Duty to the Public - Client
ABA and CA, an attorney must refrain from advising the client to act in violation of the law and rules of court
Attorney Communication with Represented Parties
Generally an attorney may not communicate with a party on the opposite side of the case if they are represented by an attorney
Threats of Legal Process
CA: an attorney may not communicate an improper threat to use legal proceedings for an improper purpose to gain an advantage in litigation proceedings
Frivolous Claims
ABA and CA: attorney may be sanctioned under Rule 11 and CA’s mirror rule if they file a claim with no good faith supported argument to modify the law or set new precedent
Associate Attorney Duties
If an associate attorney feels like the supervising attorney is actually acting in an unethical manner, they must report (ABA) or may report (CA) but L has a duty to self-report (CA)
Discovery - Disclosures
ABA and CA: L must disclose any and all exculpatory evidence (good and bad) if it absolves the other from meritless prosecution or litigation
But cannot breach A/C privilege in doing so
Duty of Confidentiality
The duty of confidentiality protects all communications made by the client to the attorney
Conflicts: imputed and screening
ABA and CA: if a L joins a firm and a client that is with the firm hs a conflict of interest with a past client that the L had represented, then a COI exists and will be imputed on the firm. If the conflict is not materially adverse to the former client that the L represented, he may not be imputed
Organization as a Client
A L that represents an organization as a client must report to the board of directors.
L may not speak to employees unless given permission by the board of directors
COI - Organization
A COI may arise in an organization when an employee interests are in conflict w corporation interests
Discussing Matters w Unrepresented Parties - Organizations
When discussing a matter with an unrepresented party, an L should advise the party that they are representing organization, not client
Duty to Disclose/Inform
A L has a duty to disclose and keep the client informed of important information about their case
Duty of Confidentiality - Organization
A L owes a duty of confidentiality to the client (org). A L must not disclose information re a matter with an employee of an organization without being given permission by a board member
She should recommend they consult their own attorney
Duty to Communicate
ABA and CA: L has a duty to communicate to their client about all COIs and important aspects of their case
Duty of Due Diligence
ABA: a L should act with reasonably diligence and promptness in representing client
CA: a L shall not intentionally fail to act with diligence
Diligence: the L acts with commitment and dedication to the interests of the client
Withdrawal - Mandatory
ABA and CA: a L must withdraw from representation if the L does not have the capacity to represent the client anymore, the client discharges the L, or the court asks the L to withdraw
Referral Agreements
ABA: referral agreements are allowed if in writing, signed by the client, who understands the nature of the referral agreement and it is not exclusive
CA: some referral services may be disclosed by the state bar and allowed
Fee Splitting between Non-Ls
Ls are not allowed to split fees with non-Ls unless they are staff and paralegals working jointly with the L for the law firm
Partnership w Non-Ls
Partnerships are allowed between Ls exclusively
Duty of Confidentiality - Safe Guarding Information
A L has they duty to keep all client information private and non-disclosed
L has a duty to keep all files safe from exposure or destruction
Duty of Care - Protection of evidence
Ls have a duty of care to protect the client’s case, evidence, and information
Duty of Loyalty - Belief in Client/Validating claims
L fails to look into facts about client made by others
Look for Ls accepting accusations without cosulting client
Duty of Loyalty - withdrawal without cause
simply withdraws without cause or worthy cause
Firing Ls
A client can fire an attorney at any time but withdrawal…(go into withdrawal analysis)
Candor to the tribunal
An A has a duty of candor to the tribunal. He has to be honest, tell the truth, never mislead, and inform of all relevant laws or cases that will be adverse to his case
Must not. hide or destroy evidence
Accepting cases that lead to L breaking the law - CA
CA: an attorney must withdraw from representation if the client seeks to file a claim not supported by the law or the facts to hurt the other client
Go into withdrawal analysis
Duty to the Public
ABA and CA: an attorney must refrain from advising the client to engage in conduct that would violate the rules of the court and the law
Supervising Attorneys
A supervising attorney must not engage in the assistance of unauthorized practice of the law. In addition, a L is allowed to have employees that are non-Ls working on the matter but they cannot engage in the actual substantive practice of law
ABA and CA: supervising attorneys have the duty to diligently supervise his associates and ensure that they are ethically in compliance with the rules of a fair judicial process
Associate’s Duty
If an associate feels that the supervising L is actually acting in an unethical manner, he or she may not act freely to violate such ethical rules
Duty to report misconduct under ABA
CA: not required to report but L has a duty to self-report
A/C Privilege
A/C privilege begins at the start of any communication in seeking legal or counsel advice for services pending a legal matter
Inadvertent Disclosure of Material Facts (non breaching party)
Even if privileged info, if material facts in case, duty to report to courts
Initial Charges - Probable Cause
Prosecutor Rules
A prosecutor must not file a charge that the prosecutor knows is not supported by probable cause.
Extra Judicial Statements: Permitted Statements
Prosecutor Rules
A lawyer may state basic facts concerning the case, such as the claim, offense, or defense involved, and, except when prohibited by law, the identity of the persons involved. She may also identify the investigating and arresting officers.
Disclosure of Exculpatory Evidence to Opposing Counsel
Prosecutor
A prosecutor is required to timely disclose all known exculpatory evidence or information that tends to disprove the guilt of the accused or mitigates the offense.
Ex Parte Communications w Judge
A lawyer is not permitted to communicate ex parte with persons serving in an official capacity in the proceeding, such as a judge. However, ex parte communications involving logistical matters that do not involve the merits of the case and emergency communications authorized by law or court order are permitted.
Solicitation of Employment
CA: lawyer may not solicit professional employment by live person to person, telephone, or email contact unless the person contacted is another lawyer or a close friend or family member
ABA: same but real time electronic contact ok
Runners and Cappers
Ls who employ agents to monitor accidents is prohibited. In CA, can be held criminally liable.
Bar Association referral services are ok
