Pro Res Flashcards
Conflict of Interest
A lawyer owes his client a duty of loyalty and must avoid conflicts of interest.
A conflict of interest exists when there is a SIGNIFICANT RISK that the representation will be MATERIALLY LIMITED by the lawyer’s personal interest or by the lawyer’s duties to another client, former client, or third person.
ABA
A lawyer may undertake representation despite the CONCURRENT conflict if they lawyer
1) reasonably believes that he can COMPETENTLY AND DILIGENTLY represent each affected client despite the conflict; and
2) each affected client gives INFORMED CONSENT, CONFIRMED IN WRITING
3) The representation if not prohibited by law
4) the representation does not involve asserting a claim by one client against another client represented by the lawyer in the same proceeding.
CA
- each affected client gives WRITTEN INFORMED CONSENT (to include both a written disclosure by the lawyer and the client’s written consent)
- If the lawyer has a personal, professional, financial, or legal relationship with a party in the matter, the lawyer must provide WRITTEN DISCLOSURE to the client, even if there is no significant risk that the relationship would materially limit the representation
Scope of Representation
A lawyer may
counsel and assist a client
to make a good faith effort
to determine the validity, scope, meaning, or application of the law.
Threat of Charges to Gain Advantage
A lawyer must not threaten
to bring disciplinary proceedings
for the purpose of gaining an advantage
in a civil dispute.
Failure to Report Ethical violation ABA/CA
ABA: A lawyer who KNOWS that another lawyer has
COMMITTED A VIOLATION of the Rules
that raises a substantial question as to that lawyers honesty, trustworthiness, or fitness as a lawyer in other respects
MUST inform the appropriate professional authority.
CA: doesn’t REQUIRE reporting
Compensation From Third Parties
ABA: A lawyer must not accept compensation for representing a client from someone other than the client unless
1) the client gives INFORMED CONSENT
2) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship; and
3) information relating to the representation of a client remains confidential
CA: Requires the informed consent to be in WRITING.
Oral Fee Agreement
ABA: non contingent fees are not required to be in writing, though it is recommended
CA: A written fee agreement is required if the fee will exceed $1,000.
Exceptions
1) the client is a corporation
2) the client state in writing that she does not want a written fee agreement
3) the legal services are the same kind of services that the client has previously received and paid for
4) the lawyer acted in an emergency to protect the clients rights
5) a writing is impractical for other reasons
Competence
ABA: a lawyer must act competently, i.e. with knowledge and skill to carry out the representation
CA: a lawyer is subject to discipline if she intentionally, recklessly, with gross negligence, or repeatedly fails to perform legal services with competence.
Duty of Confidentiality
1) An attorney must not REVEAL INFORMATION relating to the REPRESENTATION of a client
2) a lawyer must make REASONABLE EFFORTS to prevent the INADVERTENT or UNAUTHORIZED disclosure of, or unauthorized access to, information relating to the representation.
Financial Loss Exception
ABA
1) a lawyer MAY disclose information related to the representation of a client to PREVENT the client from COMMITTING A CRIME or FRAUD that is likely to cause SUBSTANTIAL FINANCIAL LOSS to a person; if
2) the client is USING or has USED the lawyer’s services to COMMIT the crime or fraud
CA: does not recognize the financial loss exception
Duty to Train Employees
A lawyer may DELEGATE trans to a paralegal or other non lawyer, but must SUPERVISE the delegated work carefully a must be ULTIMATELY RESPONSIBLE for the RESULTS.
A lawyer having
1) DIRECT SUPERVISORY AUTHORITY over
2) a NONlawyer
3) must make REASONABLE efforts
4) to ensure that the person’s CONDUCT
5) is COMPATIBLE with the professional OBLIGATIONS of the lawyer
Duty to Keep Client Informed
1) a lawyer must keep a client
REASONABLY INFORMED about the STATUS of a matter,
and PROMPTLY Comply
with reasonable requests for information
2) the lawyer must also
EXPLAIN a matter
to the EXTENT reasonably necessary
to permit the client
to make INFORMED DECISIONS
regarding representation
CA
Specifically provides that:
1) a lawyer must obtain a client’s consent
2) before agreeing
3) to pay a third person
4) from funds collected or to be collected from the client
5) as a result of the representation
contingent fee agreement
Any contingent fee agreement must:
1) indicate litigation and other expenses
2) to be deducted from the recovery, and
3) whether such expenses are to be deducted
4) before or after
5) the contingent fee is calculated
* contingent fees are not permitted in domestic relations cases where the contingency is the SECURING of a divorce, or the AMOUNT OF PROPERTY settled
Fraud
1) A lawyer must not engage
in conduct involving
dishonesty, fraud, deceit, or misrepresentation.
2) a lawyer must not
COUNSEL or ASSIST
a client
in conduct
that the lawyer knows is
criminal or fraudulent.
Sex
ABA
1) a lawyer MUST not have a sexual relationship with a client
2) even if it is consensual
3) even if the client if not harmed;
4) unless the consensual relationship began prior to the lawyer- client relationship began
CA
holds the same rule except it also includes spouses as clients and domestic partners
Fee Disputes
1) Upon receiving funds, securities, or other property
in which a client or 3rd person has an interest
a lawyer must promptly notify the person or client.
2) IF there is a dispute, a lawyer must
hold separate
the disputed portion of the funds or other property
until the claim of the client or 3rd party
is resolved.
Financial Assistance
ABA
A lawyer is prohibited from providing financial assistance to a client in connection with pending or contemplated litigation except that:
1) a lawyer may ADVANCE COURTS 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 press-renting a client on a PRO BONO basis may provide MODEST GIFTS to the client for BASIC LIVING EXPENSES
CA
*rules apply in all contexts, not just litigation
1) a lawyer is prohibited from “BUYING” a potential client with a PROMISE to pay the potential client’s PERSONAL OR BUSINESS DEBTS; and
2) 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 a WRITTEN PROMISE to REPAY the LOAN
Client Communication
1) a lawyer must keep a client reasonably informed of the status of a matter and promptly reply to reasonable requests for information
2) the lawyer must also EXPLAIN a matter to the EXTENT reasonably necessary for a client to make INFORMED DECISIONS regarding the representation
CA
*Specifically provides that a lawyer must obtain a client’s CONSENT before agreeing to pay the client’s EXPENSES to THIRD persons from funds COLLECTED or to be collected for the client as a result of the representation.
Settlements
A client has ULTIMATE AUTHORITY as to whether to accept a settlement offer.
In the course of representing the client, the lawyer must act in the client’s best interest at all times.
Witholding Services
ABA/CA
A lawyer has a duty to act on behalf of a client with reasonable DILIGENCE and PROMPTNESS and must see the matter through COMPLETION.
However, the lawyer may withdraw from the case,
1) if the client FAILS SUBSTANTIALLY to FULFILL an obligation to the lawyer regarding the lawyer’s services
2) and has been given REASONABLE WARNING
3) that the lawyer will withdraw unless the OBLIGATION is fulfilled.
Proprietary Interest
ABA
A lawyer may accept property in return for services but
A lawyer must not acquire a proprietary interest in THE CAUSE OF ACTION or SUBJECT MATTER OF LITIGATION the lawyer is conducting for a client.
CA
There is no corresponding CA rule.
*Exception Contingent fees
Reasonable Fee
A lawyer may not share fees with a non-lawyer.
ABA
An attorney’s fee must be REASONABLE. Many factors are considered in determining reasonableness of a fee, including
a) TIME and LABOR required
b) novelty and DIFFICULTY of the questions involved
c) the SKILL required to perform the legal service
d) the EXPERIENCE, ABILITY, & REPUTATION of the attorney
CA
similarly prohibits UNCONSCIONABLE fees
Termination
Upon termination of representation, a lawyer must take steps to the extent REASONABLY PRACTICABLE to protect a client’s interest, which includes SURRENDERING PAPERS & PROPERTY to which the client is entitled.
An attorney must also withdraw from representation when he is discharged by his client.
Settling a Malpractice Claim
A lawyer must not settle a claim or potential claim for malpractice liability
1) with a client of former client
2) without advising that person in WRITING
3) that INDEPENDENT COUNSEL is DESIRABLE; and
4) giving that person a reasonable CHANCE to consult with independent counsel
Conflict of Interest - Former Client
A lawyer who formerly represented a client in a matter, may not thereafter
1) represent ANOTHER person
2) in the SAME or a SUBSTANTIALLY RELATED matter
3) if that person’s INTEREST
4) are MATERIALLY ADVERSE to those of the FORMER client
5) unless the FORMER client
6) gives informed consent
7) confirmed in writing
Furthermore, a lawyer who formerly represented a client in a matter
1) must not USE INFORMATION related to the reprsentation
2) to the FORMER CLIENT’S DISADVANTAGE
3) except as permitted or required by the RPC; or
4) where the information has become GENERALLY KNOWN; and
5) must not REVEAL INFORMATION related to the representation except as permitted by the RPC
Definition of Substantially Related Matter
Two matters are substantially related if
a) they involve the SAME TRANSACTION or LEGAL DISPUTE; or
b) if there
1) is a SUBSTANTIAL RISK
2) that CONFIDENTIAL, FACTUAL information
3) that would have normally been obtained in to PRIOR REPRESENTATION
4) would MATERIALLY ADVANCE the client’s POSITION in the subsequent matter
Unauthorized Practice of Law
A lawyer must not
1) ASSIST a person
2) who is not a member of the bar
3) in the performance of an activity
4) that constituted the unauthorized practice of law.
* The practice of law is defined as anything that would call for JUDGMENT, REASONING, or SKILL of an attorney.
CA
Also specifically addresses the circumstances in which a lawyer may employ a DISBARRED or otherwise INELIGIBLE lawyer.
These INELIGIBLE person may perform
1) certain RESEARCH, DRAFTING and CLERICAL activities
2) with NOTICE to the State bar and CLIENT
3) but must NOT engage in any activities that constitute the PRACTICE OF LAW
* specific prohibited activities include providing legal consultation to clients and appearing or negotiating on their behalf.
Business Transaction with a Client
ABA/CA
Lawyers acceptance of property in return for services is subject to SCRUTINY as a conflict of interest because it may be a business transaction between lawyer and the client.
A lawyer must not ENTER into a BUSINESS TRANSACTION with a client, or knowingly acquire an OWNERSHIP or other pecuniary interest ADVERSE to a client unless
1) terms are FAIR to the client
2) the terms are fully DISCLOSED and transmitted in WRITING to the client in a manner that can be REASONABLY UNDERSTOOD by the client
3) the client is informed in WRITING the DESIRABILITY of seeking, and it given a reasonable CHANCE to seek, the advice of INDEPENDENT LEGAL COUNSEL on the transaction
4) and the client gives INFORMED CONSENT IN WRITING
