PR Flashcards
Prematurely Ending theAttorney-Client Relationship
General Rule: An attorney is to represent a client until the end of the case as per the fee agreement.
Two exceptions:
When the Attorney must withdraw
ABA Rule 1.16(a) – (Three situations)
When the Attorney may withdraw
ABA Rule 1.16(b) – (Seven situations)
Must Decline or TerminateRepresentation - ABA Rule 1.16(a)
Except if ordered by a court, an attorney shall not represent a client, or if representation has started, shall withdraw if:
(1) Representation will result in a violation of the rules
(2) The attorney’s physical or mental condition materially impairs the attorney’s ability to represent the client;
(3) The attorney is fired; or
(4) The client or prospective client sees to use or persists in using the attorney’s services to commit or further a crime or fraud despite the attorney’s discussion under Rules 1.2(d) and 1.4(a)(5)…
May WithdrawABA Rule 1.16(b)
Except if ordered by a court, an attorney may withdraw from representation if:
(1) Withdrawal can happen without material adverse effect on the client’s interest;
(2) Client insists on action involving attorney’s service that the attorney reasonably believes is criminal or fraudulent;
(3) Client used the attorney’s service to commit a crime or fraud;
(4) Client insists on action that the attorney considers repugnant or has fundamental disagreement with;
(5) Client fails to substantially fulfill an obligation to the attorney (i.e., paying fees) and was given reasonable warning that attorney will withdraw unless obligation is fulfilled;
(6) Representation will result in unreasonable financial burden on the attorney or has been rendered unreasonably difficult by the client; or
(7) Other good cause
All Early WithdrawalsABA Rule 1.16(c)
Attorney must comply with all applicable laws requiring notice to the court of the termination
Attorney must continue representation if the court orders the attorney to do so even if there was good cause
All Early WithdrawalsABA Rule 1.16(d)
Even after the representation is terminated the attorney must take steps to the extent reasonably practicable to protect the client’s interests, such as:
Give client reasonable notice
Allow enough time for client to hire new attorney
Return papers, property, fees
Note: This is not a condition for withdrawal
Duties to Prospective ClientABA Rule 1.18
Who is a “prospective client”?
ABA Rule 1.18(a)
What duties does an attorney owe to a prospective client?
Rule 1.18(b) – limited confidentiality
Rule 1.18(c) – limited conflict of interest situations
Rule 1.18(d) – exceptions to (c)
Rule 1.18(c)
Attorney is prohibited from representing a client with interests materially adverse to a prospective client in the same or substantially related matter if Attorney received info from prospective client that could be significantly harmful to that person in the matter.
Elements that need analysis:
Is the person a “prospective client”?
Is the client’s interests “materially adverse to the “prospective client’s” interest?
Is it the “same or a substantially related matter”?
Did the Attorney receive info from “prospective client” that could be “significantly harmful to the “prospective client”?
If “YES” to all the above questions, the attorney is prohibited from representing the client unless the requirements of (d) are met. If the requirements of (d) are met, then the Attorney would be allowed to represent the “Client”.
ABA Rule 5.4(a)Sharing Fees With Non-Attorneys
Attorney shall not share legal fees with non-attorney except:
Payment to dead attorney’s estate;
Non-attorney may be included in a compensation or retirement plan; or
Payment of court awarded fees to a nonprofit organization that employed or recommended employment
ABA Rule 5.4(b)&(d)Relationships With Non-Attorneys
Attorney shall not form partnership with non-attorney if any the activities of the partnership is the practice of law.
Attorney shall not practice law if a non-attorney:
Owns any interest in the professional corp./association;
Is an officer of the professional corp./association; or
Has a right to direct or control the professional judgment of the attorney
Procrastination
Rule 1.3 (diligence)
Continuing legal education
-ABA 1.1 note 8 (knowledge/skill)
-CA requires 25 hours every 3 years: Duty to report to the Bar?
-ABA Rule 8.3
ABA Rule 1.4Communication
Attorney shall promptly inform the client of any decision or circumstance which requires the client’s informed consent
Attorney shall reasonably consult with the client about the means of accomplishing the client’s objectives
Attorney shall keep the client reasonably informed of the status of the matter
ABA Rule 1.4Communication (Cont.)
-Attorney shall promptly comply with the client’s reasonable requests for information
-Attorney shall consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows the client expects assistance that is not allowed by law
-Attorney shall explain a matter to the extent reasonably necessary to permit the client to make an informed decision
Summary of Rule 1.4
-Attorney must keep the client reasonably informed so the client can effectively participate in the representation
-Respond to the client’s requests
Conflict of Interests
General Rule: Imputed Conflict
ABA Rule 1.10
All lawyers in a law firm are generally treated as a single unit thus, if one lawyer is prohibited from representing the person under Rule 1.7 or Rule 1.9 the entire firm is prohibited.
Imputed conflict can be waived by client consent but must follow Rule 1.7 requirements.
Two Exceptions to Imputed Conflict
- The original conflict of interest is based upon a personal interest of the disqualified attorney and there is not a significant risk of the conflict materially limiting the representation of the client by the other attorneys in the firm. (Rule 1.10(a)(1))
- The original conflict is based on a duty to a former client and arises out of the disqualified attorney’s association with a prior law firm and… (Rule 1.10(a)(2)
Rule 8.4: Misconduct
Maintaining The Integrity Of The Profession
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law;
(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law; or
(g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.
