PR - CA and ABA (Main Deck)* Flashcards
WHEN APPROACHING A PROFESSIONAL RESPONSIBILITY QUESTION, WHAT 4 STEPS SHOULD YOU WALK THROUGH?
STEP 1: CONSIDER THE LAWYER’S DUTIES TO THE CLIENT
STEP 2: CONSIDER THE LAWYER’S DUTIES TO OTHERS
STEP 3: CONSIDER THE LAWYER’S DUTIES OF PROFESSIONAL INTEGRITY
STEP 4: CONSIDER THE DUTIES ACCOMPANYING THE BUSINESS OF LAW
STEP 1 -
DUTIES TO CLIENT:
LIST 7 DUTIES LAWYERS OWE THEIR CLIENTS
1) Duty of Loyalty
2) Duty of Confidentiality
3) Duty of Diligence
4) Duty of Competence
5) Duty to Advise
6) Duty to Communicate
7) Duty of Fairness and Integrity
DUTY OF LOYALTY
(State the Rule)
Rule (ABA & Cal):
A lawyer owes a duty of loyalty to her clients and must not represent a client if doing so would create a conflict of interest.
LIST 3 TYPES OF CONFLICTS A LAWYER MUST BE AWARE OF
1) Actual Conflicts
2) Potential Conflicts
3) Imputed Conflicts
ACTUAL CONFLICT
(Define)
Definition: An actual conflict exists if:
- The representation of one client will be directly adverse to the interests of another client, OR
- A significant risk exists that the representation of a client will be materially limited by:
- a) The lawyer’s responsibilities to another client, a former client, or a third person. OR
- b) By a personal interest of the lawyer.
POTENTIAL CONFLICT
(Define)
Definition: A potential conflict exists when circumstances specific to the case present a reasonable likelihood that an actual conflict of interest will arise.
IMPUTED CONFLICT
(Define & State the Rule)
Definition: An imputed conflict is one in which a lawyer’s conflict of interest is imputed to associated lawyers.
Rule (ABA & Cal): Lawyers working in the same firm or department as a lawyer who is disqualified due to a conflict of interest are also disqualified from representation unless:
- The organization obtains the informed, written consent of all affected clients, OR
- Where applicable, an ethical wall is erected.
Rule (Cal): California extends this rule to impute conflicts to lawyers who have a close, personal, continuous, and regular relationship with a disqualified lawyer. Note: Imputed conflicts are based on the presumption that associated lawyers share confidential information with one another.
ETHICAL WALL
(Define & State the Rule)
Definition: An ethical wall is a remedial tool that can prevent disqualification of attorneys to whom a conflict of interest would otherwise be imputed.
Rule: Erecting an ethical wall requires:
- The physical, geographic, and/or departmental separation of attorneys,
- Establishing sanctions for discussing confidential matters with the disqualified attorney,
- Establishing rules and procedures to prevent access to confidential information and files,
- Establishing procedures to prevent the disqualified attorney from sharing in the profits from the representation, AND
- Continuing education in professional responsibility.
WHAT TYPES OF CONFLICTS WILL NOT BE IMPUTED TO ASSOCIATED LAWYERS?
1) Conflicts stemming from a lawyer’s personal interests,
2) Conflicts stemming from a lawyer’s personal relationship with opposing counsel,
3) Conflicts stemming from a lawyer’s sexual relations with a client,
4) Conflicts stemming from prior or current government sen/ice,
5) In some cases, conflicts stemming from prospective clients.
a) Note: ABA rules dictate specific procedures that, if followed, can prevent a lawyer’s disqualification due to information obtained from a prospective client from being imputed to associated lawyers.
DUTY OF LOYALTY:
BETWEEN WHOM MAY CONFLICTS OF INTEREST ARISE?
1) Lawyer and Client
2) Lawyer and Other Party’s Attorney
3) Lawyer and Third Parties
4) Current, Former and Prospective Clients
5) Clients and Third Parties
6) Organizations and Constituents
LAWYER & CLIENT:
CONFLICTS TO AVOID
(State the Rule)
Rule (ABA & Cal): A lawyer must not enter into a business relationship with a client or knowingly acquire an ownership, possessory, or other pecuniary interest adverse to the client unless:
1) The terms of the transaction are fair and reasonable to the client,
2) The terms are fully disclosed in writing in a manner that is reasonably understandable by the client,
3) The lawyer advises the client in writing that the client may seek the advice of an independent lawyer,
4) The client is given a reasonable opportunity to do so, AND
5) The client consents in writing to the terms of the transaction.
LAWYER & CLIENT:
HOW IS DECISION-MAKING POWER ALLOCATED BETWEEN THE LAWYER AND CLIENT?
Client’s Power (ABA):
1) In both civil and criminal cases, a lawyer must honor the client’s decisions regarding:
a) The objectives of representation, AND
b) Whether to settle a matter.
2) In a criminal case, a lawyer must also honor the client’s decisions regarding:
a) What plea to enter,
b) Whether to waive jury trial, AND
c) Whether the client will testify.
Lawyer’s Power (ABA): The lawyer, after consulting with the client, will determine the means by which the client’s objectives will be pursued.
LAWYER & OTHER PARTY’S ATTORNEY:
CONFLICTS TO AVOID
(State the Rule)
Rule (Cal): A lawyer must not represent a client in a matter if another party’s attorney:
1) Is related to the lawyer (i.e., spouse, parent/child or sibling),
2) Lives with the lawyer,
3) Is a client of the lawyer, OR
4) Shares an intimate personal relationship with the lawyer.
Exception: The lawyer may represent the client if he informs the client in writing of the relationship.
LAWYER & THIRD PARTIES OR WITNESSES:
CONFLICTS TO AVOID
(State the Rule)
Rule (Cal): A lawyer cannot accept or continue representation of a client if:
1) The lawyer has a legal, business, financial, professional, or personal relationship with a party or witness in the same matter,
2) The lawyer previously had such a relationship with a party or witness, and that relationship would substantially affect the attorney’s representation,
a) Note: This includes relationships the lawyer should reasonably know of.
3) The lawyer has or had such a relationship with a third party whose interests the lawyer knows would be substantially affected by the outcome, OR
4) The lawyer has or had a legal, business, financial, or professional interest in the subject matter of the representation.
Exception: The lawyer may continue representation if she informs the client in writing of the relationship.
CONFLICTS OF INTEREST BETWEEN CLIENTS
(State the Rule)
Rule (ABA): A lawyer cannot represent more than one client in a matter that involves an actual conflict of interest unless:
1) The lawyer reasonably believes she can provide competent and diligent representation to all affected clients,
2) The representation is not prohibited by law,
3) The lawyer is not representing one client against another in the same trial, AND
4) Each affected client gives informed, written consent.
Rule (Cal): A lawyer cannot accept representation of more than one client in a matter in which the interests of the clients actually or potentially conflict unless the lawyer obtains the informed, written consent of each client.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
AGGREGATE SETTLEMENTS
(State the Rule)
Rule (Cal): An attorney who represents multiple clients must have the informed, written consent of all clients before entering into an aggregate settlement agreement of a claim.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
FORMER CLIENTS
(State the Rule)
Rule (ABA): A lawyer who has represented a client in a matter cannot later represent another person in the same or substantially related matter if the clients’ interests are materially adverse unless the former client gives informed, written consent.
Rule (Cal): A lawyer must not accept employment adverse to a former client if the lawyer has obtained confidential information material to the employment due to her representation of the former client unless the former client gives informed, written consent.
CONFLICTS OF INTEREST BETWEEN CLIENTS:
WHAT IS THE TEST TO DETERMINE IF A LAWYER HAS OBTAINED DISQUALIFYING INFORMATION FROM A FORMER CLIENT?
Rule (Cal): A lawyer is found to possess confidential information adverse to a former client and is disqualified from accepting representation of a prospective client whose interests are adverse if a substantial relationship exists.To determine whether a substantial relationship exists, courts look to:
1) Factual similarity of the cases,
2) Legal similarity of the cases, AND
3) Nature and extent of the lawyer’s involvement in the prior representation.
CONFLICTS FACED BY FORMER & CURRENT GOVERNMENT EMPLOYEES
(State the Rule)
Former Government Employees (ABA): A lawyer who has formerly served as a public officer or employee of the government must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a public officer or employee unless the appropriate government agency gives informed, written consent.
Current Government Employees (ABA): A lawyer currently serving as a publicofficer or employee must not:
1) Participate in a matter in which thelawyer participated personally and substantially while in private practiceunless the appropriate government agency gives informed, written consent,OR
2) Negotiate for private employment witha party or an attorney involved in amatter in which the lawyer is participating personally and substantially,
a) Exception: A lawyer clerking for a judge may negotiate for private employment if the lawyer notifies the judge of his actions.
WHAT IS THE RULE FOR IMPUTED CONFLICTS DUE TO A LAWYER’S FORMER GOVERNMENT SERVICE?
Rule (ABA): When a lawyer is disqualified from representation due to former government service, no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation of the client unless:
1) The disqualified lawyer is screened from any participation in the matter,
2) The disqualified lawyer is apportioned no part of the fee from the matter, AND
3) Written notice is promptly given to the appropriate government agency.
PROSPECTIVE CLIENT
(Define)
Definition (ABA): A prospective client is a person who discusses with a lawyer the possibility of forming an attorney-client relationship with respect to a matter.
PROSPECTIVE CLIENTS:
WHAT IS A LAWYER’S DUTY TO PROSPECTIVE CLIENTS?
Rule (ABA): Even if no attorney- client relationship is formed, a lawyer cannot represent a client with interests materially adverse to those of a prospective client in the same or substantially related matter unless both the current and prospective clients give informed, written consent.
CONFLICTS BETWEEN CLIENTS OF THE LAWYER’S FORMER FIRM & THE LAWYER’S PROSPECTIVE CLIENTS
Rule (ABA): If, while employed by a firm, a lawyer acquired material and confidential information about a client whose interests are materially adverse to those of the lawyer’s prospective client, the lawyer may not accept representation unless the former client provides informed, written consent.
PROSPECTIVE CLIENTS:
IS A LAWYER’S DISQUALIFICATION DUE TO A PROSPECTIVE CLIENT IMPUTED TO THE LAWYER’S CURRENT FIRM?
Rule (ABA): If a lawyer is disqualified due to having received information from a prospective client, no lawyer in a firm affiliated with the disqualified lawyer may knowingly undertake or continue representation in the matter, unless:
1) Both clients give informed, written consent, OR
2) The disqualified lawyer took reasonable measures to avoid exposure to more information than was reasonably necessary to determine whether to represent the prospective client, AND
a) The disqualified lawyer is screened from any participation in the matter,
b) The disqualified lawyer receives no fee from the matter, AND
c) Written notice is promptly given to the prospective client.