PR Flashcards
7 categories of duties that lawyers owe
Confidentiality Loyalty Competence Financial Responsibilities Candor Fairness Dignity/Decorum
Duty of Confidentiality
A lawyer owes a duty of confidentiality to his client and prospective clients. The scope of confidentiality consists of all information related to the representation, regardless of the source. The lawyer cannot disclose or use confidential information, unless the client gives informed consent, the lawyer is impliedly authorized, or an exception applies. The duty of confidentiality is indefinite under the ABA; in California, it ends at probate.
Exceptions to Duty of Confidentiality
(1) informed consent
(2) impliedly authorized
(3) “self-defense”: disclosure that is necessary to establish a claim or defense re L’s services (e.g., malpractice; disciplinary action)
(4) disclosure that is necessary to prevent reasonably certain death or SBH
––Note: both ABA and CA require L to make good faith effort to persuade C not to commit the act
––CA: needs to be a crime; need to inform client of disclosure
(5) disclosure that is (i) necessary to (ii) prevent C from committing a crime or fraud (iii) that is reasonably certain to result in substantial financial loss, (iv) if C has used or is using L’s services in furtherance of the crime or fraud
––CA: no exception for financial loss
(6) compliance with court order
(7) when seeking legal ethics advice
––CA: no exception for legal ethics advice
(8) to check for conflicts when L is moving firms
––CA: no exception for this
Electronic Security
A lawyer must use reasonable electronic security to prevent unauthorized access and disclosure of confidential information.
Duty of Loyalty
A lawyers owes a duty of loyalty to his clients. The lawyer must take steps to avoid conflicts of interest. A conflict of interest arises when (i) L’s representation of one client is directly adverse to another client or (ii) if there is a significant risk of material limitation in the representation due to L’s relationship with a current or former client, or because of L’s personal interests.
A conflict is consentable if (1) L reasonably believes he can competently and diligently represent the client despite the conflict (2) the representation is not prohibit by law (3) the representation does not involve both clients making claims against each other before the same tribunal and (4) the clients give their informed consent, confirmed in writing.
CAL requires informed written consent (i.e., client’s oral consent is not enough). CAL also requires written disclosure when L has a relationship with a party or witness, or another party’s attorney.
Does assertion of inconsistent legal positions automatically create a conflict of interest?
No. But there is a conflict if there is a significant risk that L’s action on behalf of C1 will materially limit L’s effectiveness in representing C2 in a different case.
Can L take on a new client in the same or substantially related matter where his interests are materially adverse to a FORMER client?
No, unless he receives the former client’s informed consent, confirmed in writing
––CAL: informed written consent
Moving Lawyers
––Situation 1: Opposing client of L’s former firm
––Situation 2: Former firm opposing client that L poached
Situation 1: Opposing client of L’s former firm
––Rule: Where a lawyer moves firms and has acquired material confidential information regarding a former client, the lawyer cannot represent a new client in the same or substantially related matter adverse to former firm’s client, without consent. If the lawyer is disqualified, his new firm can avoid disqualification by proper screening (no share in fees; no access to information; and notice to former client)
Situation 2: Former firm opposing client that L poached
–Rule: Where a lawyer has moved firms and taken the client with him, his former firm will not be prohibited from representing a client materially adverse to the former client, unless (1) same or substantially related matter and (2) remaining lawyers have material confidential information.
Opposing Prospective Client
Lawyer cannot oppose a prospective client in a same or substantially related matter where he has acquired information that could be significantly harmful to the prospective client, unless both the client and the prospective client consent. If the lawyer is disqualified, this will not be imputed to his firm if there is a proper screen and lawyer had taken steps to minimize exposure of confidential information.
Private to Government
Government to Private
A lawyer cannot work on the same matter that he participated personally and substantially in while in private/gov’t practice.
Won’t be imputed to private firm if proper screen.
For government work following private practice, the gov’t must consent.
Does private involvement in a matter as a judge or third-party neutral require consent of all parties for conflicts purposes?
Yes!
Can a law clerk negotiate for private employment with an attorney in a matter in which the clerk is participating personally and substantially?
Yes, with judge’s consent
Specific Conflicts: Gifts
ABA: cannot solicit substantial gifts; cannot prepare instrument that would result in substantial gift to L
CAL: can prepare instrument that creates a substantial gift to L, but C must be advised by independent lawyer
Specific Conflicts: Lit/Media Rights
ABA: can’t acquire lit/media rights substantially concerning the reputation; but can acquire after the fact
CAL: no prohibition–treats like a business transaction
Specific Conflicts: Business Transaction
“First Discuss Over Coffee”
- Fair: terms must be fair to client
- Disclose: all material terms and the lawyer’s role must be disclose to the client
- Outside: the lawyer must advise the client to seek outside counsel for the transaction
- Consent: the consent must give informed written consent in signed document
Specific Conflicts: Malpractice Settlement
Allowed, but L must advice C to seek independent counsel and give C a reasonable time to do so
Specific Conflicts: Malpractice Waiver
ABA: C must be independently represented
CAL: not allowed
Specific Conflicts: Loans
ABA
––Non-indigent: can advance lit expenses; repayment can be contingent on case outcome
––Indigent: can pay lit expenses
CAL: Broader. Allows for advance/payment of ALL expenses (not just lit expenses). After rep starts, L can loan C $ for any purpose, if there is a WRITTEN loan agreement.
Specific Conflicts: Board Service + Law Reform Activities Affecting Clients
Can serve on non-profit legal services organization, but can’t knowingly participate in an action/decision that would result in a conflict of interest
Can serve on law reform organization; but when a decision would materially benefit a client, the lawyer must disclose this (but does not need to ID the client)
Specific Conflicts: Trial Counsel as Necessary W
Prohibited, unless (i) L’s testimony is uncontested (ii) L’s testimony concerns his legal services rendered or (iii) L’s withdrawal would cause substantial hardship
Can a 3P pay for L’s services?
Yes, with C’s informed consent. L must not allow that 3P to direct or regulate his professional judgment.
What needs to be in a fee agreement for a non-contingent fee case? Does the agreement need to be in writing?
Contents: how fee is calculated; covered services; respective duties
Writing: CA requires a writing, unless (i) $1000 or less; (ii) corporate client; (iii) routine services for regular client; or (iv) emergency/impractical
What needs to be in a fee agreement for a contingent fee case? Does the contingent fee agreement need to be in writing?
Contents: L’s percentage; expenses deducted from recovery; whether percentage is taken b/f or after expenses
––CAL also requires: how work not covered by contingency will be paid; that L’s fees are negotiable
Writing: both ABA and CAL require a writing signed by C
What is the standard for setting fees? [amount]
ABA: fees must be reasonable
CAL: fees must not be unconscionably high
Is C’s refusal of a settlement offer grounds for L to withdraw, pursuant to representation agreement, OK?
Yes
What’s entailed in L’s duty to keep C informed?
(i) explain matter as necessary to allow C to make an informed decision
(ii) keep client informed of all substantial developments
(iii) comply with all reasonable requests for information
Fee Splitting
OK to split fees with lawyer in own firm
OK to split fees with lawyers outside firm, if…
- ABA: (1) total fee is reasonable (2) disclosed to C in writing and (3) either (a) split is proportional to services performed or (b) both lawyers assume joint responsibility
- CAL: allows for true referral fees
Cannot fee split with non-lawyers (exceptions: non-lawyer salaries; etc.)
Can a lawyer be in a partnership that provides legal services, where some of the partners are non-lawyers?
No! Non-lawyers cannot be partners nor direct L’s professional judgment
How is competence measured?
Using the legal knowledge, skill, throughness, and preparation reasonably necessary for the representation
A lawyer can become competent through self-study or affiliation with a lawyer competent the area.
CAL: lawyer is generally not subject to discipline based on incompetence for an isolate act (i.e., at a minimum gross negligence or repeated failure to perform services with reasonable competent is required for discipline)
Withdrawal: mandatory v. permissive
Mandatory: ABA (3 grounds) + CAL (distinctions + 1 additional)
Permissive: ABA (8 grounds) + CAL (distinctions + 4 additional)
Mandatory
(i) fired; (ii) continued rep would violate law/ethical rule (iii) if physical/mental condition impairs competence
––CAL: only an unreasonable impairment re physical/mental condition will require withdrawal
––CAL: also (iv) C is bringing action without probable and for purpose of harassment
Permissive
(i) C persists in C/F involving L’s services
(ii) C already used L’s services to perpetuate C/F
(iii) C fails to substantially fulfill obligation to L
(iv) rep rendered unreasonably difficult by C
(v) C insists on taking action L finds repugnant
––CAL: not a ground for permissive withdrawal
(vi) unreasonable financial burden on L
––CAL: not a ground for permissive withdrawal
(vii) WD accomplished without material adv effect
––CAL: not a ground for permissive withdrawal
(viii) other good cause
Permissive: CAL additional grounds
- client assents to termination
- continued rep will likely lead to law/ethics violation
- physical/mental condition impairs rep (but does not render rep unreasonably difficult
- C insists on taking some frivolous action
In California, can a lawyer withhold client’s file until fees are paid?
NO
No-Solicitation Rule
Cannot seek professional employment for PECUNIARY gain by initiating a LIVE TELEPHONE OR REAL TIME AUDITORY OR VISUAL CONTACT with a specific person
Anti-Perjury Rules
Civil Case
––MUST refuse to call witness who L KNOWS intends to lie
––MAY refuse to call witness who L REASONABLY BELIEVES intends to lie
Criminal Case
––If L only has a REASONABLE BELIEF ∆ intends to lie, then L must allow ∆ to testify
––IF L KNOWS ∆ intends to lie, and ∆ cannot be persuaded to testify truthfully, then L should try and withdraw. If that fails, then….
–––––Under ABA approach: disclose to tribunal
–––––Under CAL approach: CANNOT disclose to tribunal; tell judge there is an ethical issue; case law allows ∆ to testify in narrative fashion
Can a lawyer threaten disciplinary, administrative, or criminal proceedings to gain an advantage in a civil case?
CAL: no
ABA: N/A [no rule prohibited this]
Inadvertently sent documents
ABA: promptly notify opposing counsel
CAL: stop reading as soon as you realize its priv or WP + notify sender
Communicating with represented persons
Cannot communicate with a person L KNOWS is represented by counsel on the subject of the matter unless L has consent of that person’s counsel
Communicating with unrepresented persons
Can do this, but L (1) cannot state or imply that he is disinterested; (2) L must correct any misunderstanding; and (3) L cannot give legal advice except for the person to obtain counsel
Unauthorized practice of law
beyond the capacities and knowledge of lay persons
Reporting misconduct
ABA: reporting is required for violations that raise a substantial question as to the lawyers honesty, trustworthiness, and fitness as a lawyer
CAL: no reporting requirement, but a lawyer can be disciplined for a colleague’s violation which he fails to prevent; also, need to self-reporting in CA
Partner’s supervisory obligations
- Make sure all members of firm, including non-lawyers, conform to ethical rules
- Will be responsible for ordering or ratifying another lawyer’s misconduct
- Will be responsible if he has supervisory control over lawyer, knows about misconduct, and fails to take reasonable remedial action
When can an associate be liable for following orders of partner?
Will be liable for clearly unethical conduct
Will not be liable for acting in accordance with partner’s instructions concerning an arguable question of professional duty
