PR Flashcards
DOL - Types of conflicts of interest (remember: can be current/actual and future/potential)
(1) Current clients
(2) Current client and former client
(3) Current client and prospective client
(4) Current client and 3P
(4) Current client and L’s own interest
Current clients rule
L can’t represent if
- one client’s interests are directly adverse to other OR
- sig. risk that rep. materially limited by other client
Current and former clients rule
L can’t rep. another person in
- same or sub. similar matter if
- interests are materially adverse to former clients
current and prospective clients rule
L can’t rep if
- interests are materially adverse to prospective client
- in same or sub. similar matter
current client and 3P or L’s own interests rule
L can’t rep if
- sig. risk that rep.
- materially limited by
- L’s responsibilities to 3P or L’s interests
Conflict of interests exceptions
- L’s reasonable belief
- Not prohibited by law
- Claims not against each other
- informed written consent (includes disclosure of conflict)
DOL: Org as client
Approach:
(1) Organization as client heading
(2) Repping both employee and org (L must remind employee that he reps org)
(3) Reporting up within org
(4) Reporting out
*Beware of DOC if employee told org that he did something (can’t share that info outside of org and perhaps can’t share that info with org if he formed A-C relationship with employee)
L representing corp/organization (report up/out) rule
- L acts in best interests of org only (unless there’s no conflict w/ constituents)
- If L knows associated person engaged in wrongdoing
- Likely to result in substantial injury to org
- L must refer up to internal higher authority unless not in best interest of org to do so
ABA only: if needed, refer out to authorities
CA only: cannot refer out unless death/sub. bod. harm
L as former govt employee
- may not represent privately
- L participated personally and substantially
- Unless informed consent from gov’t
Imputed firm disqualification
Conflict for L applies to entire firm unless:
- Conflict based on L’s personal interest, or
- Conflict based on a former client at a prior firm. Conflicted L must be timely screened from matter, and written notice provided to former client/certify compliance with procedures
NOTE: Client can waive
Compensation by third party
L cannot accept payment from third party unless
- C gives informed consent
- No interference with L and C
- Info remains confidential
Opposing L is L’s relative
Informed consent
Sex with client
Ok if pre-existing, consensual
L’s personal belief
Informed consent
Business transactions w/ clients or acquiring adverse interest ok if
- Terms fair/reasonable
- Terms fully disclosed in writing to C
- Advised to seek ind. counsel
- Informed written consent
Solicitation of gifts
- L can’t solicit substantial gifts OR
- Prepare an instrument that gives gifts
- Unless relative
CA: ok if ind. L or fair or no undue inf.
Acquiring an interest in litigation
- L cannot acquire
- Unless for fees or contingency in civil case
Financial assistance to client re: litigation (ABA)
- Only to advance court/litigation costs in contingency cases (repayment can be contingent on outcome if agreement is valid) and indigent clients (w/o repayment)
(advance costs = expenses of med. exam., costs of obtaining and presenting ev.).
*cannot advance costs up to 50% of the case value as these costs may not be exclusively for court costs and litigation expenses.
Financial assistance to client re: litigation (CA)
- can advance litigation costs
- lend money to C if C promises in writing to repay
Limiting malpractice (ABA)
Ok if C rep. by ind. lawyer
Limiting malpractice (CA)
Never ok
Settlement claims
Ok if advised in writing to seek ind. L
L testifying as witness
Generally not ok but ok if:
- uncontested issue
- nature and value of legal services rendered in case
- hardship on client if L not allowed (ABA)
- L obtained C’s informed written consent (CA)
DUTY TO COMMUNICATE
- Promptly inform client
- Status of case
- Promptly respond to client
- Communicate settlement offer to client
SCOPE OF REPRESENTATION
- L decides the means (legal strategy)
- C decides the objectives and goals of the representation and decides substantive issues: accepting pleas, offers, settlements, jury trial
DUTY OF CONFIDENTIALITY (ABA)
L cannot reveal unless:
- Informed consent
- Impliedly authorized
- Comply with law
- Secure legal advice
- Establish claim or defense for L
- L reasonably believes necessary to prevent (1) D/SBH or (2) crime/fraud
ATTY-CLIENT PRIVILEGE
- Conf. communication is intended
- Purpose of seeking legal advice
- Holder: client (person or corp)
- Lasts until death or execution of estate
- Exceptions: L’s services to further crime/fraud, dispute w/ lawyer, CEC: prevent crime w/ D/SBH
DUTY OF CONFIDENTIALITY (CA)
L cannot reveal unless
- Necessary to prevent D/SBH, disclosure optional, try to dissuade first, inform C of planned reveal
- Compelled by court order
FEES (ABA)
All fees must be reasonable (consider time required, L’s skill and experience, etc)
FEES (CA)
Fees must be reasonable and must not be unconscionable (did L engage in fraud?)
Fees agreements (ABA)
Should state:
- How fee calculated
- Nature of services
- Responsibilities of L & C
But NO requirement reg. fee agreement be in writing
Fees in writing (CA)
If fees exceed $1,000, must (1) be in writing, (2) state fees and services provided, (3) signed by L and C.
EXCEPTIONS:
- corp client
- emergency
- previous client similar service
Contingency fee agreement
- In writing
- Signed by L and C
- Method for fee calculation;
- Expenses C is liable for
NOT ALLOWED in domestic or crim cases
*A duplicate copy of the agreement signed by the attorney and client must be provided to the client at the time of signing. Agreement must also state fee is negotiable.
Fee splitting/sharing
Prohibited w/ non-lawyers. With Ls, ok if:
- C consents in writing after disclosure
- ABA: total fee reasonable and proportionate
- CA: Ls enter into written agreement
- BOTH: fees not increased bc multiple L’s
L giving gifts for recommending services (ABA)
L can’t give gifts for recommendation of L’s services except for
- Qualified referral service
- reciprocal referral agreement
- nominal gifts
L giving gifts for recommending services (CA)
L can give gift ONLY IF not offered in anticipation of referral or future referrals
Reciprocal referral fee between L’s and between Ls and non-Ls
Allowed if
- Not exclusive
- C is informed of agreement
DUTY OF COMPETENCE (ABA)
- Provide competent representation
- Possess requisite knowledge, skill, thoroughness for representation
DUTY OF COMPETENCE CA
- No intent., repeatedly, reckless, gross neg. failure to act competent
- Note L’s physical and mental abilities
- Ok to associate w/ competent L or become one or refer out
DUTY OF DILIGENCE (ABA)
Duty to act w/ reasonable diligence and promptness in rep.
DUTY OF DILIGENCE (CA)
No intent., repeatedly, reckless, gross neg. failure to act diligently
- Diligence = commitment, dedication
SAFEKEEPING PROPERTY
- No commingling of property or funds (Ls must keep client property and funds separate from their own)
- Keep C’s funds in separate trust account for 5 years
- Advance payments can be withdrawn as earned (ABA) and ok in operating acct if client writing (CA)
- Physical property separate
Disputes over funds
L must distribute undisputed funds to C and keep disputed funds in C’s trust acct
MANDATORY WITHDRAWAL
- Violation of rules
- Mental/physical condition
- Discharged
- CA: knows C’s action to harass
PERMISSIVE WITHDRAWAL
- Used L for crime/fraud (reas. belief)
- Repres. unreasonably difficult
- C fails to fulfill obligation
- Good cause
DUTY TO CLIENT ON WITHDRAWAL
Minimize harm to client which includes:
- Reasonable notice
- Obtain court approval (if litigation already commenced)
- Surrender papers and prop
- Refund fees not earned
ADVERTISING
No false/misleading communication.
- Can advertise thru written or electronic comms. unless C said no solicitation
- Advertising requirements: Truthful, name and address of L, can state speciality
SOLICITATION (no direct solicitation rule)
NO direct soliciting (narrower, targeted comms) in person, live phone call, if L’s motive is pecuniary gain unless person contacted is
- L
- Family
- Close friend
- Prior prof. relationship
**solicitations can be conducted by or ON BEHALF of L (third party) to a person that L knows or should know needs services.
UNAUTHORIZED PRACTICE OF LAW
- No helping non-L in practice of law
- no sharing fees w/ non-L
- no practicing in jx where not admitted
NO PARTNERSHIPS W/ NON-LAWYERS
L is not permitted to form a partnership with non-L if any of the activities of the partnership consist of the practice of law (ABA and CA)
DUTY TO SUPERVISE
If L has supervisory authority, L must supervise other L or non-L to ensure their conduct conform to rules
LIABILITY FOR OTHER L’s and NON-L’s CONDUCT
L liable for other L or non-L’s conduct if L ratifies conduct or supervises and could mitigate
EMPLOYING A DISBARRED ATTY
L cannot knowingly employ disbarred atty to practice L and perform L duties, BUT can perform clerical work
DUTY OF FAIRNESS to represented parties (including corps)
L cannot communicate to known rep. parties unless other L consents
DOF to unrepresented people
L can’t give legal advice and make clear who he represents
DOF to COURT
A lawyer has a duty of fairness to the court. A lawyer must not knowingly make any false statements of law or fact to the tribunal or offer evidence L knows to be false.
- If L made false statement, he must correct.
- If L learns later that he offered false evidence, he must remedy by urging his client to correct. Under ABA, he must disclose to court if he can’t withdraw. Under CA, L can’t disclose if protected by rules. If L knows C plans to commit crime fraud, he must try and dissuade him to not do so and if necessary, disclose to the court. If criminal defendant plans to lie and lawyer knows, he must still allow D to testify but must take remedial measures like above.
DOF to OPPOSING COUNSEL
- No falsity
- No tamper or obstruct access to evidence, etc
- Return inadvertent sent materials and promptly notify sender (CA: refrain from examining writing)
- No friv. discovery requests
- CA: no suppress evidence or pay witness (but can advance court costs)
DUTY OF DECORUM TO TRIBUNAL
- No influence judges or jurors
- No ex parte communications w/o other attorney presence or w/o giving other attorney notice (can communicate for emergency)
Prosecutors’ duties
- Prosecutors must give D all exculpatory evidence that tend to exonerate or disprove D’s guilt
- Trial publicity—NO extrajudicial statement if L knows it will be publicly shared and materially prejudice D (if multiple, discuss in own section)
- Can’t prosecute charges not supported by probable cause
- Seek to remedy wrongful convictions
REPORTING ETHICAL VIOLATIONS
- ABA: Must report another L violation when the L actually knows of other L’s misconduct and misconduct relates to other L’s honesty or professional fitness.
- CA: must report if have credible evidence of misconduct
- CA: must report self
DUTY TO PUBLIC / PROFESSION
No fraud, crime, frivolous claims
CA: no claims to harass, no threats to obtain an unfair advantage
DUTY TO public/profession cont.
it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Such conduct need not be criminal. (e.g. lying to client)
Comms with represented persons, org
If person repped by counsel is an org, the org’s counsel must give permission before opposing counsel can communicate with
(1) one who supervises or consults with org’s L’s,
(2) persons with authority,
fin(3) those whose conduct may be imputed to org
CA: any express guarantees or warranties about outcome of case
presumed to be a violation
