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
