PR ESSAY RULES Flashcards
Withdrawal from Representation
Under the ABA Model Rules of Professional Conduct (“ABA Rules”) and under the California Rules of Professional Conduct (“California Rules”), a lawyer has a duty to act on behalf of a client with reasonable diligence and must see the matter through to completion.
[If PERMISSIVE withdrawal]
However, a lawyer may withdraw from the case if the client substantially fails to fulfill an obligation to the lawyer regarding the lawyer’s services, such as failing to pay legal fees. The client must be given reasonable warning that the lawyer will withdraw unless the obligation is fulfilled.
[If MANDATORY withdrawal]
However, a lawyer must withdraw from the case if the representation will result in a violation of the rules of professional conduct or other law, the lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client, or the lawyer is discharged by the client.
PROPRIETARY INTEREST IN THE CAUSE OF ACTION
Under the ABA Rules, a lawyer must not acquire a proprietary interest in the cause of action or subject matter of the litigation the lawyer is conducting for the client. There is no equivalent California Rule.
EXCEPTION: Contingency Fee allowed to acquire a proprietary interest in a civil case. However, the lawyer will be subject to discipline for using a contingency fee in a domestic relations case to secure a divorce or the amount of the property settlement. The lawyer will also be subject to discipline for using a contingency fee in a criminal case.
EXCEPTION: Lien
However, a lawyer may acquire a lien authorized by law to secure the lawyer’s fee or expenses
NOTE: This rule is limited to litigation matters
Attempting to Violate v. Actually violating the Rules
Attempting to violate the Rules is grounds for discipline even if the violation is not carried out.
REASONABLE FEE
The ABA Rules state that an attorney’s fee must be reasonable. Whether an attorney’s fee is reasonable depends on the time and labour required, the novelty and difficulty of the question involved, the skill required to perform the legal service, and the experience or reputation of the attorney. The California Rules prohibit unconscionable fees.
PROTECTING CLIENT’S INTERESTS ON TERMINATION
When terminating the representation, a lawyer must take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled, and refunding any unearned advance payments.
SETTLING A CLAIM (OR POTENTIAL CLAIM) FOR MALPRACTICE LIABILITY
A lawyer must not settle a claim or potential claim for malpractice liability with a client or former client without advising that person in writing that independent counsel is desirable, and giving that person a reasonable chance to consult with independent counsel. California does not allow a lawyer to prospectively limit malpractice liability to a client in any circumstance.
CONFLICT OF INTEREST: FORMER CLIENTS
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or substantially related matter if that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent, confirmed in writing.
Two matters are substantially related if they involve the same transaction or legal dispute, or if there is a substantial risk that confidential factual information received from the prior representation would materially advance the current client’s position in the present matter.
A lawyer who formerly represented a client in a matter must not use information relating to that representation to the former client’s disadvantage, except where permitted or required by the ABA or California Rules, or when the information has become generally known.
CONFLICT OF INTEREST: CURRENT CLIENTS
A lawyer owes their client a duty of loyalty and must avoid conflicts of interest. A conflict exists when there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or by the lawyer’s duties to another.
Under the ABA Rules, a lawyer may undertake a representation despite the conflict if the lawyer (1) reasonably believes that she can competently and diligently represent each affected client despite the conflict, and (2) each affected client gives informed consent, confirmed in writing. California requires informed, written consent. Additionally, in California, if a lawyer has a personal, professional, financial, or legal relationship with a party or witness in the client’s matter, the lawyer must provide a written disclosure to the client even if there is no significant risk that the relationship would materially limit the representation.
FINANCIAL ASSISTANCE TO CLIENT
The ABA rules prohibit a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter, (2) a lawyer representing an indigent client may pay the client’s court costs and expenses outright, and (3) under certain circumstances, a lawyer representing a client on a pro bono basis may provide modest gifts to the client for basic living expenses.
In California, this rule applies in all contexts (not just litigation), it prohibits a lawyer from “buying” a potential client with a promise to pay their personal or business debts, and it provides that after a lawyer is hired, regardless of the client’s financial status, the lawyer may lend the client money for any purpose if the client gives him a written promise to repay the loan.
COMPETENCY
The ABA rules provide that a lawyer must provide competent representation. Competent representation requires the legal knowledge and skill, thoroughness, and preparation reasonably necessary for the representation. In California, a lawyer is subject to discipline only if they intentionally, recklessly, with gross negligence, or repeatedly fails to perform legal services with competence.
Contingency Fee Disclosure Requirements
Any contingency fee agreement must indicate litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingency fee is calculated.
SEXUAL RELATIONSHIP WITH CLIENT
Under the ABA Rules, a lawyer must not have a sexual relationship with a client. This rule applies even if the relationship is consensual, and even if the client is not harmed. The sole exception to the rule is when the lawyer and the client have a consensual sexual relationship that predates the representation. The California rule is the same, but also applies when the lawyer and client are spouses or registered domestic partners.
ACCEPTING COMPENSATION FROM THIRD PARTIES
Under the ABA Rules, a lawyer must not accept compensation for representing a client from someone other that the client unless (1) the client gives informed consent, (2) there is no interference with the lawyer’s independence of professional judgement or with the lawyer-client relationship, and (3) information relating to the representation of a client remains confidential.
FAILURE TO REPORT AN ETHICAL VIOLATION
Under the ABA rules, a lawyer who knows that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects must inform the appropriate professional authority. California does not require lawyers to report violations by other lawyers.
