PR Flashcards
Duties to Client
Clients Love Fabulous Counsel (CLFC)
Duties to Non-clients
Courts Feel Differently (CFD)
Concurrent Conflict (Duty of Loyalty)
A concurrent conflict of interest exists when
1) The representation of a C will be directly adverse to the interests of another C OR
2) There is a significant risk that the representation of a C will be materially limited by the L’s personal interests or by the interests of another C, former C, or a 3rd person.
Client Consent to Concurrent Conflict (Duty of Loyalty)
L may undertake representation where there is a concurrent conflict IF:
1) The L reasonably believes that he can competently and diligently represent each affected C and
2) The representation is not prohibited by law ;
3) The representation does not involve the assertion of one claim by one C against another in the same proceeding and
4) Each affected C gives informed WRITTEN consent.
(CA: no “reasonable L” std, applies to actual & potential conflicts, and only need WRITTEN disclosure.
Imputed Conflict (Duty of Loyalty)
Generally if one lawyer in a firm faces a conflict, that conflict is imputed to all other lawyers within the firm (or partnership, etc.).
C may consent to the conflict in the same manner as a concurrent conflict.
CA: Disqualified, but not subject to discipline.
Duty of Loyalty
L must exercise professional judgment solely for the benefit of the C, free from compromising influences and loyalties. L must avoid conflicts of interest.
Screening (Duty of Loyalty)
A L’s conflict will not be imputed to the firm IF:
1) The disqualified lawyer is timely screened from any participation in the matter,
2) The disqualified lawyer is not given a part of the fee,
3) WRITTEN notice is given promptly to any affected former C and
4) Certifications with the compliance procedures are given to the former C. (“ethical wall”)
Government Officers (Duty of Loyalty)
ABA: L cannot work on a matter if the L worked personally and substantially on the same matter (i.e., a specific dispute b/t specific people over specific issues) while in govt, UNLESS govt gives informed WRITTEN consent.
Imputed disqualification does not apply to the colleagues of a former govt L IF
1) the L is screened off,
2) L does not share in any part of the fee, AND
3) L’s former govt employer is informed.
CA: explicitly bars prosecutors from later working on the defense of the same case. CA has no other general rule.
Specific Types of Conflicts
- Ownership/Financial Interest Adverse to C
- Improper info use adverse to C
- Designation of Lawyer as a beneficiary
- Media Rights
- Proprietary Interest in COA
- Financial Assistance to Clients
- Compensation from Party other than Client
- Aggregate Settlements
- Limiting Malpractice
- Settling Malpractice
- Working with Family
- Sexual Relations
- Liability Insurers
- Former Clients
- Trial Counsel as Witness
- Representing Organizations
- SEC- Sarbanes Oxley
- Ownership/Financial Interest Adverse to C
L must not enter into a business transaction with a C or knowingly acquire an ownership or other pecuniary interest adverse to the C UNLESS
1) The transaction and its terms are fair and reasonable to the C and are fully disclosed in WRITING to the C [in a manner that can be understood;]
2) The C is informed of the desirability of seeking and is given the chance to seek independent counsel
3) C given informed consent in WRITING.
[Contingent fee ok, and a lien for fees is ok]
- Improper info use adverse to C
L may not use information relating to representation of a C to the disadvantage of the C UNLESS the C gives informed consent. This would violate duty of loyalty and duty of confidentiality.
- Designation of Lawyer as a beneficiary
L must not solicit a substantial gift from a C or prepare an instrument giving the L, or a person related to the lawyer, a substantial gift from a C (including testamentary), EXCEPT when the C is related to the donee.
In CA the L is also prohibited from inducing the gift, but not from preparing the instrument.
- Media Rights
L must not negotiate or make an agmts giving the L media rights to an account based on information related to representation (prior to the conclusion of the representation).
CA allows such agmts, however the potential conflict must be disclosed and a judge is satisfied that the C fully understands the conflict and waives it.
- Proprietary Interest in COA
L must not acquire a proprietary interest in a C’s cause of action EXCEPT L may
1) Acquire a lien authorized by law to secure L’s fees/expenses OR
2) K w/ C for reasonable contingent fee in a civil case.
CA: No liens and L must promptly release to C all papers and property.
- Financial Assistance to Clients
L must not provide financial assistance to a C in connection w/ litigation EXCEPT
1) To advance court costs if contingent on the outcome AND
2) An L representing an indigent C may pay court costs & expenses on behalf of the C.
CA: Broader and applies to all contexts not just litigation [i.e. pay business debt], but money may be loaned to the C if there is a WRITTEN promise to pay the loan. (e.g. promissory note).
- Compensation from Party other than Client
L must not accept compensation from someone other than the C UNLESS:
1) C gives informed consent (CA need WRITING); (
2) There is no interference w/ the L’s independence of professional judgment, AND
3) All C info is protected.
- Aggregate Settlements
An L who represents two Cs must not partake in making an aggregate settlement of the claims, of or against the Cs, UNLESS each C gives informed consent in WRITING.
- Limiting Malpractice
ABA: L must not make an agmt to prospectively limiting the L’s malpractice liability UNLESS C is independently represented in making the agmt.
CA: L can never limit liability. Void as against
public policy.
- Settling Malpractice
Must advise in WRITING to seek independent counsel and giving reasonable time to seek independent counsel.
- Working with Family
When two Ls are closely related to each other they must obtain informed consent before they represent different Cs in the same matter or substantially related matters.
CA also includes L’s living together and where there is intimacy—these are not imputed to the firm]
- Sexual Relations
L must not have sexual relations with a C, UNLESS such relations existed prior to the formation of the attorney-C privilege.
CA: No such rule, but L may not demand sexual relations with a C or allow sexual relations to affect the rep.
- Liability Insurers
CA exception, there is no conflict when L represents a policy holder and his insurance company as joint Cs, where the insurers interest in each matter is only as an indemnity provider.
- Former Clients
L who formerly represented a C in a matter may not thereafter represent another C in the same or substantially related matter, if the new C’s interests are materially adverse to the interests of the former C UNLESS former C gives informed WRITTEN consent.
[also applies where L worked for a FIRM that represented the other side]
- Trial Counsel as Witness
L may not ordinarily serve as counsel when the L is likely to be necessary as a witness. If L as already accepted representation he should withdraw. Three exceptions to the provision are:
1) If the trial counsel’s testimony will relate solely to an uncontested matter;
2) If trial counsel’s testimony will concern only the nature and value of legal services rendered to the C; OR
3) If the withdrawal of the trial counsel would result in SUBSTANTIAL hardship because of the distinctive value of the L or firm.
CA: This rule does not apply in bench trials.
- Representing Organizations
In representing an organization, L must act in the organization’s best interest. L may represent the officers and directors of such IF there is no violation of the conflict of interest rules, OR WRITTEN consent.
If someone in the organization is acting in the contrary, L must report the action to a higher authority. If highest authority fails to take time, appropriate action, L may report the relevant info to appropriate persons outside the organization, IF the L reasonably believes that disclosure is necessary to prevent substantial injury to the organization. CA: Prohibits outside reporting, UNLESS the disclosure is necessary to prevent death or SBI.
- SEC- Sarbanes Oxley
Under the federal rules if L discovers that his Cs are violating SEC provisions, he
1) must report to the CEO/Chief legal counsel,
2) if no appropriate response then he must go to the BOD/ highest authority (i.e. outside directors, and
3) if L believes it is necessary to prevent fraud or substantial injury to the corp or its investors or if L’s services were used to further the violation, the L may disclose confidential info to SEC w/o C’s consent.
This is in direct conflict with the ABA and CA rules which give L discretion. Preemption applies.
Duty of Confidentiality
Part of duty of Loyalty
- Attorney-Client Privilege
- A/C duration
- Confidentiality Generally
- ABA Exceptions to the Confidentiality req
- CA Exceptions to Confidentiality
- Duty to Protect Property
- Attorney-Client Privilege
An evidentiary rule which allows the C to refuse to testify and prevent his L from testifying in court about confidential communications btwn the two or their respective agents. Some exceptions are:
(1) The C seeks L’s services to enable or aid anyone to commit a future crime or fraud;
(2) The communication is relevant to an issue of breach of duties arising from the relationship; OR
(3) Civil litigation between two people who were formerly joint Cs of the L;
(4) In CA if the L believes the disclose is necessary to prevent SBI or death, NOT fraud or financial injury.
- A/C duration
ABA: Survives after death.
CA: Ends after estate is settled and discharged.
- Confidentiality Generally
L must not reveal info relating to the representation of a C, this applies even if the info was obtained before or after the relationship existed. This duty continues even after the relationship is terminated.
CA no ethical rule for confidentiality, but Ls are bound by the promise in the attorney’s oath “to maintain inviolate the confidence, and at every peril to himself or herself, to preserve the secrets, of his or her client.”
- ABA Exceptions to the Confidentiality Req
L MAY reveal information IF
(1) The C gives informed consent
(2) Disclosure is impliedly authorized in order to carry out the representation
(3) The L reasonably believes it is necessary to prevent SBI or certain death
(4) Disclosure is necessary to prevent the C from committing a fraud which is likely to cause substantial financial loss to a person AND the C has used the L’s services to commit the fraud. (may make “noisy withdrawal”)
(5) Disclosure is required by final order of the court
(6) Disclosure is necessary to collect a fee or protect the L
(7) Disclosure is necessary to obtain a legal opinion
- CA Exceptions to Confidentiality Req
(1) C gives informed consent
(2) Disclosure is impliedly authorized in order to carry out the representation
(3) Where compelled by court order
(4) To collect attorney’s fees
(5) Defend against malpractice
(6) When necessary to prevent a criminal act that will cause death or SBI to someone
- Duty to Protect Property
L must hold the property of a C or 3rd person separate from the L’s own property, and a record must be kept of any property held by the lawyer (must be kept for 5 years in CA). (Labeled and stored in a safe place)
Financial Duties to Client
- Attorney’s Fees
- Contingent Agreements
- Restrictions on Contingent Fee
- Fee Restrictions
- Fee Splitting
- Referral Services
- Partnerships with Non-Lawyers
- Client Trust Account
- Attorney’s Fees
Non-contingent agreements must contain:
(1) How the fee is calculated;
(2) What services are covered; AND
(3) And the L and the C duties, AND
(4) CA is must be in WRITING UNLESS under $1000, routine services for a regular C, a corporate C, an emergency, or C stated in WRITING she does not want a written fee agmt.
- Contingent Agreements
All contingency agreements must be in WRITING and contain :
(1) The percent of fees,
(2) What expenses are to be deducted from recovery, AND
(3) whether or not L’s percentage is taken from before or after expenses. Cannot have a contingency fee in domestic OR criminal cases.
L hired then fired is entitled to reasonable value of services performed if & when C wins.
CA further requires that the agreements state:
(1) How work not covered by the agreement will be paid AND
(2) That L’s fees are negotiable.
CA allows contingent fees so long as it does not encourage the divorce OR against public policy.
- Restrictions on Contingent Fee
Contingency fee agreements may not be used in domestic relations or criminal actions.
However CA rules are silent to this, but allows IF the agreement does not promote dissolution. CA allows 40% contingency fee for 1st $50k recovered
- Fee Restrictions
Under ABA rules attorney’s fees must be reasonable. Reasonable fees take into account the totality of the circumstances (time, labor, skill req’d, customary fee in locality for similar work, amount and result obtained, experience, ability, and reputation of the L).
In CA attorney’s fees must not be unconscionable.
- Fee Splitting
May always split fees with Ls in a firm. But if you split fees with an outside L it is only ethical IF:
(1) There is WRITTEN disclosure & C consent AND
(2) The total fee is ethical & division is proportional.
Fee splitting with non-lawyers is generally not allowed (policy is to protect L’s independence of judgment). But L may pay the charges of a qualified referral service and fees passed as salaries to non-lawyer employees.
- Referral Services
ABA: Not permitted.
CA: Reciprocal referrals with other professionals are ok IF (1) they are not exclusive AND (2) you explain the arrangement to the C.
- Partnerships with Non-Lawyers
Partnering w/ non-lawyers to provide legal services is prohibited for any practicing lawyer. Non-lawyers cannot be partners, shareholders, officers, or control or direct your professional judgment.
- Client Trust Account
No borrowing or commingling funds. Money held for the C must be placed in an individual interest-bearing trust account (smaller funds held for short period of time for several Cs may deposited into a “pooled C trust account). L has duty to
(1) keep good records,
(2) render accountings,
(3) notify C of money received, AND
(4) pay C promptly money due to him.
CA: Requires L to keep records of C property for 5 years.
