Prof. Resp. Flashcards
Conflict of Interest: Duty of Loyalty
Essay Heading should be “Duty of Loyalty:”
Start every paragraph of the essay with “Under ABA and CA, . . . .”
A lawyer owes a duty of loyalty to their client. A conflict of interest exists when the interest of another, the lawyer, or a third-party materially limits or is adverse to the representation.
GENERAL RULE: A lawyer owes a duty of loyalty to:
- Act solely to further the client’s best interests;
- Not sacrifice the client’s interests for his own or of a third party; AND
- Avoid any representation that poses a conflict of interest.
Duty of Competence
Essay Heading should be “Duty of Competence”
Start every paragraph of the essay with
Under RPC 1.1, when representing a client, a lawyer must act competently; that is, with the legal knowledge skill, thoroughness, and preparation reasonably necessary for the representation.
In addition, the CA RPC provides that competence includes the mental, emotional, and physical ability reasonably necessary to perform the service.
The following factors should be considered: (1) the complexity of the matter; (2) the lawyer’s general experience; (3) the lawyer’s experience in the field in question; (4) the preparation the lawyer is able to give to the matter; and (5) whether it is feasible to refer the matter to a lawyer of established competence in the field.
If the lawyer is incompetent, he must decline/withdraw from the representation.
CA further requires that lawyers must not perform legal services with cannot perform legal services with “gross recklessness.”
Exceptions to Duty of Competence:
1) Becoming Competent Through Preparation:
A lawyer may accept representation despite lacking competence in the field involved if the requisite competence can be achieved by reasonable preparation. However, the lawyer must acquire sufficient learning and skill before performance is required.
2) Emergency Situations:
In an emergency, a lawyer may assist a client, even if the lawyer does not have the skill ordinarily required in the field in question, if referral to or consultation with another lawyer would be impractical. However, the assistance should not exceed what is reasonably necessary to meet the emergency.
Duty of Confidentiality
Essay Heading should be “Duty of Confidentiality:”
Start every paragraph of the essay with “Under ABA and CA, a lawyer must not reveal information related to the representation of the client. The duty of confidentiality applies to all information related to the representation regardless of when or where it was acquired. The duty applies even after the attorney-client relationship has ended and even after the client’s death.
Protected Information: The duty of confidentiality applies not only to confidential client communications, but also to ALL information relating to the representation, regardless of the source (including lawyer observations & third-party communications)
Exceptions to Duty of Confidentiality:
Nonetheless, a lawyer may reveal information related to the representation of the client if:
- The client gives informed consent;
- The disclosure is impliedly authorized in order to carry out representation; OR
- The disclosure is permitted under an exception
- CA: a lawyer is required to “maintain inviolate the confidence, and at every peril to himself to preserve the secrets of the client.” (even prospective clients)
I. EXCEPTION: A lawyer may reveal information relating to the representation, if the lawyer reasonable believes it is necessary to:
a. Prevent the Client from Committing a Crime or Fraud that is likely to result in substantial financial/property injury of another and in furtherance of which the client has used or is using the lawyer’s services (AND to prevent, mitigate or rectify such injury)
b. Get Advice about lawyer’s compliance w/ rules (e.g., ethics hotline)
c. Establish a Claim or Defense on behalf of the lawyer (e.g., malpractice suit; ineffective assistance of counsel)
d. Comply with Other Law or a Court Order
e. Prevent Reasonably Certain Death or Substantial Bodily Harm
f. CA: but must first make good faith effort to convince client to not commit/continue criminal act & inform him of decision to reveal the information. Then attorney MAY reveal.
