PR Attack Cards Flashcards
DUTY TO COMMUNICATE
- Promptly inform client
- Status of case
- Promptly respond to client
- CA: Okay to delay if client will harm another
SCOPE OF REPRESENTATION
- L decides legal strategy
- Client decides substantive issues: pleas, offers, settlements, jury trial issue
DUTY OF CONFIDENTIALITY - ABA
Under the ABA, the duty of confidentialty requires that a L must not reveal information relating to the representation of the client. UNLESS:
- informed consent
- impliedly authorized
- L reasonably believes necessary to (1) prevent death or SBH or (2) prevent, mitigate, rectify crime/fraud of financial injury
- Comply with law
- Secure legal advice
- Establish claim or defense for L
DUTY OF CONFIDENTIALITY - CA
The CA RPC has no per se duty of confidentiality. However, the State Bar Act and the attorney oath that all lawyers in CA pledge require that lawyers maintain inviolate client confidence. UNLESS:
- Necessary to prevent death or SBH BUT disclosure is option, try to dissuade first, and inform client of planned reveal
- Compelled by court order
ATTORNEY-CLIENT PRIVILEGE
Is an evidentiary privilege that allows a client to keep confidential all communications with his L, intended to be confidential, made for the purpose of facilitating legal services. The client can refuse to testify and prevent his L from testifying. C holds privilege.
- Corporation applies to employee/agents if authorized
- Lasts until (FRE: after death and CA: estate settled)
EXCEPTIONS:
- L’s services to further crime or fraud
- Dispute with L
- CA: prevent crime with death/SBH
WHAT IS A FEE AND HOW CALCULATED?
ABA: reasonable fees and CA: not unconscionable fees
- Time limitations imposed by C or circumstances
- Experience, reputation, ability
- Nature and length of relationship
- Time, labor, novelty, difficulty
- Fee customarily charged
- Likelihood to preclude other employment
- Amount involved/results obtained
- Whether fixed or contingent fee
CA: L fraud or overreaching
CA: L not disclose material facts
CA: Solicitation of L/client
CA: Amount of fee/proportion
CA: informed consent
FEE AGREEMENTS
MUST INCLUDE
- How fee calculated
- Nature of services
- Responsibilities of L and C
CA: fee agreements more than $1,000 MUST be in writing, UNLESS
- Corporate client
- Emergency
- C waives writing in writing
- Previous C and similar service
FEE DISPUTES
Under ABA arbitration is encouraged, however, CA requires.
CONTINGENCY FEE AGREEMENT
Must be
- in writing
- signed by client (and L in CA)
- method for fee and % L takes
- expenses to deduct and when
- not for domestic/criminal cases
- CA: negotiable unless negligence against health care (set % then)
FEE SPLITTING/SHARING
Prohibited with non-L
With Ls okay if:
- C consents in writing
- ABA: total fee reasonable
- ABA: proportionate
- CA: Ls enter written agreement, total fee is not increased b/c of division, and full written disclosure with terms before consent
GIFTS/REFERRAL FEES
ABA: no finder’s fees or gifts for value unless qualified referral service approved by authority
CA: okay to give gift for past recommendation not future promise
A reciprocal referral fee is okay if not exclusive and client is informed
DUTY OF COMPETENCE/CARE
ABA: L must possess legal knowledge, skill, and thoroughness to represent C
CA: L must not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence (lower than ABA). Also includes learning and skill and mental, physical, and emotional ability. Allows L to become competent by associating with another competent L, acquiring necessary skills before performance, or refer out
DUTY OF DILIGENCE
ABA: L act with reasonable diligence and promptness in rep C
CA: L shall not intentionally, repeatedly, recklessly, with gross negligence fail to act diligently in rep C
CA: Diligence = commitment, dedication, no neglect, unduly delay
SAFEKEEPING PROPERTY
Money - trust account separate, no commingling, and accounting kept for 5 years
Advance Payments - ABA: L can withdraw as earned/ CA: okay flat fee paid in advance in operating account if disclosure to C in writing and C can require to be put in trust acct until fee is earned and entitled to refund if not earned.
Physical property - keep separate
MANDATORY WITHDRAWAL
A lawyer SHALL withdraw from representation when
- violation of rules (ABA: both PR rules and other laws/CA: just PR rules)
- mental/physical condition materially impairs
- discharged by C or court
- CA: knows client’s actions without probable cause or to harass or maliciously injury a person
PERMISSIVE WITHDRAWAL
A lawyer may withdraw from representation if
- fraud/crime using L (reasonable belief)
- used L for crime/fraud
- representation becomes unreasonably difficult C fails to fulfill obligations such as pay
- good cause
ABA: No materially adverse effect on client, unreasonable financial burden on L, client’s actions repugnant to L
CA: Client assents, L’s mental/physical condition makes it difficult, continue likely to violate PR rules, client has no good faith, L cant work with co-counsel
DUTY TO CLIENT ON WITHDRAWAL
When the court grants permission for withdrawal, the attorney shall protect the client’s interests and provide (1) reasonable notice to find another lawyer, (2) surrender papers and property, and (3) refund fees not earned.
ADVERTISING/SOLICITATION
Advertising must not be false or misleading communication. Ads must be truthful, labeled as advertising, and have at least one L’s name and address required.
NO direct solicitation. A L may not conduct in-person, live telephone or real-time electronic contact for pecuniary gain, subject to exceptions:
- free legal services
- family members
- clients and former clients
- truthful nondeceptive letters labeled as Ads to person w/specific legal problem
CA presumes violation if: (1) there is express guaranty or warranty, (2) testimonial without disclaimer, (3) no fee without recovery label unless client cost disclosed.
Specialists: L shall not imply or state that he is certified as a specialist in a particular field unless approved and clearly identified.
UNAUTHORIZED PRACTICE
No partnering with non-L or forming partnership or association
LIABILITY FOR OTHER L
Liable for other L professional responsibility violation if knowingly ratifies conduct or is a partner, or has direct supervisory authority and could have mitigated
DUTY OF FAIRNESS
L has a general duty of fairness to third party, opposing counsel, and court.
3rd party: No communication with party or witness is known to be represented by another lawyer unless other L consented or authorized by law or court order
Corp: L must obtain consent of corp’s L
Court: L shall not knowingly make false statement, fail to disclose adverse legal authority, offer evidence known to be false (perjury), L knows C intends to engage in fraudulent or crim activity
Opposing Counsel: L shall not unlawfully obstruct/destroy evidence, provide false evidence, promptly notify materials inadvertently sent (CA refrain from examining), no disobey court rules, not assert personal knowledge of facts, make frivolous discovery requests, pay witness to testify unless expert, time, or reasonable expenses, or advise person to leave to avoid testifying.
DUTY OF DECORUM TO TRIBUNAL
A L shall not:
- seek to influence jurors, judges, or officials
- communicate ex parte
- engage in conduct intended to disrupt proceedings
- communicate with jurors after discharge if don’t want to
DUTY TO NOT SUPPRESS EVIDENCE
CA rules prohibit L from suppressing evidence that must be revealed or produced
TRIAL PUBLICITY
No extrajudicial statement that L knows or reasonably should know will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding.
L CAN state: claim, offense, defense, info public record, the investigation is in progress, requests for info, warnings of danger, and status of accused.
L CANNOT state: character, credibility, reputation, criminal record, guilty plea or confession, opinion as to guilt pr innocence or inadmissible evidence
