PR Flashcards
Duty of Confidentiality
a lawyer must not reveal anything related to the representation of a client or use that inform against them without their consent
Scope of Confidentiality
more broad than the attorney client privilege and applies regardless of whether the client requested it be kept confidential or whether the revelation might harm or embarrass the client
Duty of Confidentiality Timing
attaches before a lawyer-client relationship forms even if none is ever formed. Once attached it continues even after formal representation and ends through client’s lifetime. In CA, ends w/ probate.
Duty of Confidentiality Exception
applicable when 1) client sues you for malpractice; 2) client brings disciplinary actions against you; or 3) client refuses to pay, forcing attorney to sue for fees
Conflicts Check/ Ethical Duty Exception
a lawyer may disclose w/out clients consent, non-privileged, minimal info when moving to a new law firm
Duty to Uphold the Law Confidentiality Exception
allows revelations to: 1) prevent death or substantial bodily harm; or 2) fraud or crimes causing financial injury
Standard for death/ substantial bodily harm (duty to uphold law)
May reveal whatever’s necessary to prevent act if you reasonably believe that it will prevent reasonably certain death/ substantial bodily harm (CA restricts this to preventing criminal acts) Must, if reasonable under the circumstances, make a good faith effort to persuade client not to commit act (CA must inform client of decision to reveal confidences)
Standard for preventing fraud/ crimes causing financial injury (duty to uphold law)
may reveal client’s confidences to prevent future crimes if he used or is using your services to commit the crime and disclosure would prevent or mitigate substantial financial loss (CA, NO FINANCIAL EXCEPTIONS)
Duty of Confidentiality
arises if 1) representation is directly adverse to another client or 2) there’s a substantial risk that representation will be materially limited by relationship w/ former client, current client, personal interest, or a 3rd person
Imputed Conflict
a group of lawyers who work closely together or share responsiblities share each others conflicts unless: 1) a collegues previous government service/work conflicts her out of specific work– the firm can still take the client w/ safeguards such as screening the collegue w/ the conflict behind an ethical wall or 2) uniquely personal conflict
Continued Representation when conflict arises
allowed if: 1) you reasonably believe that you can represent everyone efficiently despite the conflict; 2) inform each affected client; 3) client consents, confirmed in writing that memorializes the oral consent
Opposing a current client in another matter
only allowed w/ informed reasonable consent of all the clients
Different clients w/ inconsistent positions in two separate cases (ex: arguing for/ against legislation in two different appeals)
so long as the client’s are not directly adverse to each other lawyer can still represent the two diff clients bc the inconsistent positions don’t automatically create a conflict
Representing multiple clients in the same manner
usually raises a significant risk that service for one may become materially limited bc of the other’s interest (ex: learn a secret of one client that could affect the other) Best remedy is to w/draw & advise them to get separate counsel
Representing new client in matters related to former clients matter
raises risk of material limitation if confidential info from former client might be relevant to new clients matter (confidentiality/ duty of loyalty issue). To take on representation must get former client’s consent
Government lawyer moving to private practice
if worked substantially & personally on a matter then can’t work on the same matter later in private practice w/out the govt’s consent
Imputed Disqualification Exception for Colleagues of Former Govt Lawyers
former govt lawyer must be 1) screened off; 2) cannot share any part of the fee in the matter; and 3) former govt employer must be informed
Gifts to lawyers
a lawyer must not solicit a substantial gift from a client or draft a legal instrument for a client who is not a close relative if it provides a substantial gift to the lawyer or lawyers relative
Lawyer limiting ability
a lawyer cannot limit a clients ability to report a lawyer for professional misconduct or to cooperate in an investigation for lawyers malpractice when entering into a relationship w/ the client unless the client is independently represented in making the agreement. BUT CA bars malpractice limits
Settling a Malpractice Claim
if a client makes a malpractice claim against you, can only settle after written advice to client to consult outside attorney
Business Transaction w/ a client
First Discuss Over Coffee May enter business w/ a client or obtain interest adverse to theirs if: 1) terms are FAIR to the client 2) DISCLOSED in understandable writing 3) advise client to consult an OUTSIDE attorney 4) client provides CONSENT in a signed writing
Taking Shares as Payment
allowed if 1) valued reasonably; 2) transaction is documented; and 3) fair and reasonable under the circumstances known to lawyer when interest is acquired UNLESS its so large that it would distort the firms representation
