PR Flashcards
Duty of loyalty — concurrent clients
A lawyer owes a duty of loyalty to her client. She must exercise her professional judgment solely for the benefit of the client, free of comprising influences and loyalties. A lawyer must avoid concurrent conflicts of interest.
A concurrent conflict of interest exists if:
(1) The representation of one client will be directly adverse to another client (CA: in the same or a separate matter);
[insert factual analysis and mini conclusion]
or
(2) There is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person, or by a personal interest of the lawyer.
[insert factual analysis and mini conclusion (e.g. given the significant risk of material limitation, the lawyer cannot reasonably believe that he can competently and diligenty represent each effected client’
Exception: Representation Notwithstanding Conflict
Notwithstanding the existence of a concurrent conflict of interest, a lawyer may represent a client if the following 4 conditions are met:
(a) The lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client [copy, paste, tweak from (2) above]
(b) The representation is not prohibited by law
(c) The representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(d) Each affected client gives informed consent, confirmed in writing.
Duty of Financial Integrity– Reasonable Fees
Reasonable Fees
An attorney’s fees must be reasonable taking into account such factors as (1) the time and labor spent, (2) the skill of the lawyer, and (3) the customary fees charged for this type of work
Duty of Financial Integrity– Fees
Unconscionable Fees
In California, the fee must not be ‘unconscionable.’ There are many factors including the experience, reputation, and ability of the lawyer performing the services, as well as the time and labor required.
Duty of Financial Integrity–Written Fee Agreement
Written Fee Agreement
Under RPC, if attorney is not regularly representing the client, the fee must be communicated to the client, preferable in writing, before or within a reasonable time after commencing the representation.
Under CA, there needs to be a written fee agreement, in advance, if fees are to exceed $1,000 unless the client is a corporation, the client states in writing she does not want a written fee agreement, the legal services are of type that client had previously received and paid for, it was an emergency situation, or a writing is impractical for other reasons.
Duty of Financial Integrity–Fee Splitting
Fee Splitting
A lawyer may not split/share fees with a non-lawyer
Under ABA and California rules, the duty of financial integrity is breached if a lawyer engages in ‘fee splitting’ with a non-lawyer.
DUTY OF COMPETENCE AND CARE
A lawyer has a duty of competence and care to his clients. Under ABA and California rules, this requires the (a) knowledge, (b) skill, (c) thoroughness and (d) preparation reasonably necessary for the representation. California also has a Duty of Diligence to act with reasonable diligence in representing a client.
DUTY TO AVOID THE UNAUTHORIZED PRACTICE OF LAW
Under ABA and California rules, a lawyer has a duty to avoid the unauthorized practice of law.
This includes – anyone not licensed to meet w/ clients, give legal advice to clients, they can draft docs so long as they are supervised.
DUTY OF CONFIDENTIALITY
A lawyer must generally maintain the confidences and secrets of their clients. A lawyer must not voluntarily revealing confidential information relating to representation of client.
APPLIES TO ALL INFORMATION
Exceptions: (1) consent, required by court (when compelled to do so, when acting as 3P neutral), (3) to collect a fee, (4) to defend yourself against malpractice claim / ineffective counsel, (7) to obtain legal ethics advice, (8) death / SBI, (9) financial injury [not a ca expection]
DUTY OF COMMUNICATION
DUTY OF COMMUNICATION
An attorney must keep a client reasonably informed regarding the status of the matter.
When the matter is time-sensitive, the attorney needs to keep making additional efforts to contact the client.
Duty of Loyalty–Business Transaction with Client
A lawyer must not knowingly enter into a business transaction with a client or acquire a pecuniary interest adverse to a client, unless:
(a) transaction is fair and reasonable to client,
(b) transaction is fully disclosed and transmitted in writing in manner that client understands
(c) client is given reasonable opportunity to seek the advice of independent counsel, and
(d) the client consents in writing
Duty of Loyalty–Beneficiary in a Will
RPC: A lawyer cannot prepare an instrument giving himself or his immediate family any substantial gift, except where the client is related to the donee
CA: A lawyer is prohibited from inducing the gift, not preparing the instrument
Attorney-Client Privilege
An exclusionary rule of evidence law prohibiting court from compelling revelation of confidential communications between attorney and client
Allows client to refuse to testify and prevents his lawyer from testifying in court about confidential attorney-client communications between the 2 or their respective agents
The relationship DOES NOT terminate privilege and survives client death // [CA: terminates when estate is settled and personal rep is discharged]
Corporate Client – Privilege
Attorney-client privilege covers confidential communications between an attorney and a high ranking official, or any employee if:
(a) its a subject within the scope of his job,
(b) communication is at direction of worker’s superior, and
(c) worker knows communication is to help corporation get legal advice.
Duty of Loyalty– Representing an Organization
Lawyer represents/acts in the best interests of the organization, not the constituents, and must make that clear
o Attorney must explain to the constituents that representing
organization, not them personally // Has duty to report to higher authority in organization( But some discretion if lawyer reasonably believes that organization’s best interest doesn’t require the violation to be reported)
*Can report out if she believes reporting is necessary to prevent substantial injury to the org (including $$)
- She can also withdrawal
Attorney-client privilege covers confidential communications between an attorney and a high ranking official, or any employee if:
(a) its a subject within the scope of his job,
(b) communication is at direction of worker’s superior, and
(c) worker knows communication is to help corporation get legal advice.
IN CA: Disclosure is prohibited of confidential info unless necessary to prevent a criminal act that will cause death or substantial bodily harm to someone
Work-Product Doctrine
Protects any material prepared by the lawyer (or a rep of party) in anticipation of litigation, including witness statements as well as the lawyer’s opinions and mental impressions.
Candor to the Tribunal– Witness Testimony
An attorney cannot call a witness when she knows the witness will give false testimony.
A lawyer cannot offer evidence she knows is false.
Duty of Confidentiality–Prospective Clients
When the attorney-client relationship has not been formed but there has been an inquiry, the attorney has a duty to protect the information learned from that prospective client.
Representation is possible when:
(1) both the affected client and prospective client have given informed consent in writing, or
(2) the disqualified lawyer is timely screened from any participation in the matter and is not appropriated any part of the fees.
