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Select Topics - Second Semester > Prof. Resp. > Flashcards

Prof. Resp. Flashcards

1
Q

PR - Duties of a Lawyer

A
  1. Duty of Loyalty and Avoidance of Conflicts of Interest
    • Concurrent Conflicts (Potential and Actual)
    • Imputed Conflicts
    • Financial Conflicts (Fair and Reasonable, Independent Counsel)
    • Payment From Party Other than Client
  2. Duty to Keep Client Property and Records (No Commingling)
  3. Duty of Competence (Knowledge, Skill, Preparation, Thoroughness)
  4. Duty of Care (Attention, Research, Investigation)
  5. Duty of Diligence (Promptly and Zealously to Completion)
  6. Duty of Communication (Inform, Comply, Settlement Offers)
  7. Attorney-Client Privilege (Extends to Necessary Persons, Scope)
  8. Duty of Confidentiality (Broader Scope)
  9. Duty to the Profession Not to Aid Unauthorized Practice of Law (Know or Reason to Know, Professional Judgment of Lawyer, No Splitting Fees/Referrals to Non-Lawyer)
  10. Duty of Fair Representation (Juror/Judge Contact, Trial Publicity, Fairness to Parties)
  11. Duty of Fairness to Opposing Parties and Counsel (Evidence, Deception, Frivolous Requests)
  12. Duty of Candor (Truthfulness with Court, Adverse Authority, Criminal Defendant Perjury)
  13. Duty to Produce Evidence (No Suppression or Tampering)
  14. Duty Not to Contact Represented Parties
  15. Duties of a Public Prosecutor (9 Duties)
  16. Duty to the Public (No Fraud, Crimes, Immoral Acts)
  17. Duty to the Legal Profession (Report Others—ABA, Report Self—CA)
  18. Duty to Withdraw (Mandatory or Permissive)
  19. Duty of Truthful Advertising (Truthful, Not False or Misleading)
  20. Duty to Avoid Solicitation (No Direct Contact for Fee-Paying Work)
  21. Duty to Make a Reasonable Fee Arrangement (Reasonable (ABA) vs. Unconscionable (CA)
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2
Q

PR - Duties of a Lawyer SUMMARY

A

CLFC/CFD

Clients Love Fierce Counsel—Courts Feel Differently

Owed to Client:

  1. Competence and Care (Competence, Diligence, Management of Firm)
  2. Loyalty (Conflicts of Interest—With Client, Between Clients, Clients & Third Parties)
  3. Financial Responsibility (Compensation, Client Trust Accounts, Loans, Liability Insurance)
  4. Confidentiality (Client Representation, Attorney-Client Privilege)

Owed to Court/Profession:

  1. Candor (Prevent Perjury, Present Facts & Evidence Truthfully, No Frivolous Claims)
  2. Fairness (Comply With Discovery Requests, Contact With Represented Party)
  3. Dignity (Advertising & Solicitation, Reporting Professional Misconduct, Unauthorized Practice of Law)
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3
Q

PR - Duty of Loyalty

A

An attorney owes his client a duty of loyalty and to avoid conflicts of interest. A conflict of interest can be actual or potential, and arises where the interests of the attorney or a third party (including a current or former client) may limit or adversely affect the attorney’s decisions or ability in representing the client.

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4
Q

PR - Conflict Due to Another Client

A
  • Insurance Companies (CA): There is no conflict when a lawyer represents a policyholder and his insurance company as joint clients, where insurer’s interest in each matter is only as indemnity provider.
  • Multiple Clients, Same Matter: Risk that your service may become materially limited due to others’ interest. Such potential conflicts require disclosure and consent.
  • Former Client: Generally cannot take on new client with interests materially adverse to former client without former’s consent
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5
Q

PR - Conflict Due to Attorney’s Interest - Financial Conflicts

A
  1. Transaction must be fair and reasonable to client and disclosed in writing
  2. Client advised to seek independent counsel (in writing in CA)
  3. Client understands lawyer’s role
  4. Client gives informed consent in writing
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6
Q

PR - Conflict due to Attorney’s Interest - Gifts to Attorney

A
  • ABA: Lawyer may not solicit a substantial gift from a client or prepare an instrument giving the lawyer or his relation a substantial gift from a client, except where they are related.
  • California: A lawyer may not induce a gift, but may prepare the instrument (although this creates a rebuttable presumption that will invalidate the gift unless overcome)
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7
Q

PR - Conflcit due to Attorney’s Interst - Media Rights

A
  • ABA: Lawyer cannot obtain media rights prior to conclusion of representation
  • California: No rule prohibiting it, but it is discouraged and client must understand and consent
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8
Q

PR - Conflict Due to Attorney’s Interest - Sex with Clients

A
  • ABA: No sexual relationships with a client unless it is preexisting and consensual
  • California: Lawyer cannot demand sex, coerce or unduly influence client into sex, or act incompetently due to sex
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9
Q

PR - Conflict due to Attorney’s Interest - Malpractice/Limiting Liability

A
  • ABA: To limit liability, a lawyer must
    1. Withdraw or advise client in writing to seek independent counsel
    2. Advise client lawyer is not advising client as to settlement
    3. Disclose in writing terms and effect of settlement agreement
  • California: A lawyer must promptly disclose to the client any facts giving rise to malpractice claim against him. A lawyer may not seek to limit his liability under any circumstances.
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10
Q

PR - Conflict due to Attorney’s Interest - Loans/Advances to Client

A
  • ABA: No assistance unless:
    1. Litigation expenses for indigent
    2. Advance of litigation expenses in a contingency fee case
  • California: Lawyer may not promise to pay prospective client’s debts, but may make loans to client for any purpose with a written loan agreement
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11
Q

PR - Conflict Due to Attorney’s Interest - Trial Counsel as Witness

A
  • ABA: Lawyer may not appear as counsel and witness in same trial unless:
    1. Testimony is uncontested
    2. Testimony relates to nature and value of services rendered
    3. Attorney’s distinctive value to case means withdrawal would impose substantial hardship
  • California: Lawyer may testify in bench trial, and if the client consents, in a jury trial
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12
Q

PR - Conflict due to Third PArty

A

Compensation From Non-Party: Lawyer must not accept compensation for representing a client from a non-client unless:

  1. The client gives informed consent (CA requires a writing)
  2. No interference with lawyer’s independence of professional judgment or client relationship
  3. Information relating to representation is protected
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13
Q

PR - Continuing to Represent Client in Face of Conflict

A
  • ABA: Lawyer may continue representing client in the face of conflict if:
  1. Lawyer must reasonably believe he can competently and diligently represent client
  2. Representation not prohibited by law
  3. Client not asserting claim directly against another client
  4. Lawyer obtains clients’ informed, written consent
  • California: Lawyer’s belief he can continue to represent client need not be reasonable. Rules apply to both potential and actual conflicts. Lawyer need only make written disclosure where conflict arises out of lawyer’s prior relationships or personal interests.
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14
Q

PR - Imputed Conflicts

A

Generally: If lawyer faces conflict of interest, no lawyer in his firm may represent client. Affected client may resolve conflict by giving informed, written consent. General rule does not apply to:

  1. Current and former government lawyers
  2. Purely personal interests of conflicted lawyer
  3. Conflicts due to conflicted lawyer’s close family relationship with another lawyer
  4. Conflict due to conflicted lawyer’s sexual relationship with client

ABA Screening Procedure: Lawyer may continue representing client in the face of conflict if:

  1. Timely screened
  2. Apportioned no part of fee
  3. Written notice given to affected former clients
  4. Certifications of compliance with procedure provided upon former client’s request

California: Silent regarding imputed conflicts of interest, so not subject to discipline. Case law follows the rule for the purpose of granting motions disqualifying a lawyer from handling a litigated matter.

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15
Q

PR - Government Attorneys

A

ABA: Lawyer now in private practice may not represent client in connection with matter he participated in personally and substantially as a government officer or employee, unless government agency gives informed, written consent.

California: No counterpart, but a lawyer who participated on prosecution side of criminal case cannot participate on defense side.

Imputed Conflicts: Conflicts not imputed if conditions of a screening procedure met:

  1. Screened from participation
  2. Does not share in fee
  3. Government agency notified
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16
Q

PR - Duty to Keep Client Property & Records

A

Generally:

  1. Hold property of clients or third persons separate from his own
  2. Keep client funds in client trust account
  3. Keep records of client funds and other property
  4. Keep client informed and deliver funds or other property to one entitled to receive them

Disputes: If lawyer possesses funds or other property to which the lawyer or a third person has claim, and client disputes it, the lawyer must keep disputed portion of funds or property separate

Trust Accounts

  1. If lawyer takes advance on fees, he must deposit them in trust account until earned—failure to timely withdraw from account as earned results in improper commingling of funds
  2. Once dispute as to funds is resolved, undisputed funds must be paid out

California Timing: Lawyer must preserve records of client funds or other property for 5 years after distributed

17
Q

PR - Duty of Competence

A

Knowledge, Skill, Preparation, Thoroughness

ABA: Duty to have the knowledge, skill preparation and thoroughness necessary to undertake representation of client. If lawyer doesn’t possess these abilities, he may still undertake representation if:

  1. Learns necessary knowledge within a reasonable time
  2. Associates and works with experienced attorney
  3. Faces an emergency situation

California: Lawyer subject to discipline for intentionally or recklessly, or repeatedly, rendering services incompetently

18
Q

PR - Duty of Care

A

Diligence, Skill, Attention

Duty to pursue a matter diligently and with the skill and attention one would give to one’s own personal matters. This includes a duty to research, investigate, and take time necessary to adequately prepare a matter for a client.

19
Q

PR - Duty of Diligence

A

Diligence, Promptly, Zealously

Duty to diligently, promptly and zealously pursue your case to completion.

Note: May conflict with duty to withdraw

20
Q

PR - Duty of Communication

A

Inform, Comply w/Requests, Explain Matters

Duty to keep client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. Lawyer must explain matter enough to allow client to make informed decisions regarding representation.

California—Liability Insurance: Attorney who knows or should know they have no professional liability insurance must disclose that fact in writing to any client when the total amount of legal representation may exceed 4 hours. Inapplicable to government lawyers, in-house counsel, or legal services in an emergency.

21
Q

PR - Attorney Client Privilege

A

Applies Only to Communications

ABA: Attorney cannot disclose confidential communications, except where:

  1. Client uses attorney to commit crime,
  2. Issue relates to breach of attorney-client relationship, or
  3. Litigation between former joint clients

California: Same, but can also reveal confidential information to prevent a criminal act that will cause death or substantial bodily harm

22
Q

PR - Duty of Confidentiality (Duty to Keep Secrets)

A

Generally: Duty to keep client confidences and secrets on matters related to the representation. Duty relates to all information, regardless of whether client considers it confidential. The duty is broader than the attorney-client privilege, which applies only to communications.

ABA Exceptions:

  1. Attorney has consent or implied authority
  2. Necessary to prevent future death or serious bodily harm
  3. Necessary to prevent or rectify substantial financial loss (only ABA)
  4. Required by final court order
  5. Necessary to collect a fee or protect lawyer from criminal charge or civil litigation

California Exceptions:

  1. Necessary to prevent a criminal act that will cause death or substantial bodily harm, but if reasonable client must first:
    • Make good faith effort to persuade client not to commit act, and
    • Inform client of intention to reveal confidences
  2. Necessary to collect a fee or protect lawyer from criminal charge, ethics charge or civil litigation
  3. Required by final court order
23
Q

PR - Duty of Confidentiality (Sarbanes-Oxley)

A

Generally:

  1. Report up to CLO/CEO
  2. CLO makes inquiry and informs reporting attorney if he fails to discover violation, or takes steps to cause issuer to adopt response and notifies reporting attorney
  3. If no response in reasonable time, report up to audit committee or board
  4. If reasonable response, that’s it
  5. If not, attorney may report out to SEC where necessary to prevent fraud

California: Does not permit this permissive disclosure, so there is a potential conflict regarding duty under federal law and state rules of professional conduct

24
Q

PR - Duty Not to Aid the Unauthorized Practice of Law

A

“Professional Judgment of a Lawyer”

Generally: A lawyer may not permit or assist someone in the unauthorized practice of law, which includes things involving the professional judgment of a lawyer.

Fee Splitting: Lawyer may not split fees with a non-lawyer, pay a referral fee to a non-lawyer, or engage in practice of law or sharing of legal income with a non-lawyer (including a disbarred former lawyer).

25
Q

PR - Duty of Fair Representation

A

Litigation Conduct

Generally:

  1. No improper contact with juror or judge
  2. No trial publicity that he knows or should know sill substantially prejudice proceeding
  3. Must be fair to opposing counsel and parties

Incriminating Evidence: Lawyer who receives incriminating evidence from a client must turn it over to proper authorities

Preventing Others from Providing Information: Lawyer may not request a person other than client refrain from voluntarily giving relevant information to another party unless person is relative, employee or agent of client and lawyer reasonably believes person’s interest will not be adversely affected by refraining.

26
Q

PR - Duty of Fairness to Opposing Party and Counsel

A

Litigation Conduct

Generally: A lawyer may not

  1. Unlawfully obstruct access to, or alter, spoliate or destroy, evidence
  2. Falsify evidence or urge another to
  3. Knowingly disobey court obligation
  4. Make frivolous discovery request or objections
  5. Fail to return document sent inadvertently
  6. Allude to matter in trial not supported by admissible evidence
  7. Deceive the court by making fraudulent statements or failing to disclose material fact when disclosure is necessary to prevent fraud or crime
  8. Improperly contact opposing party knowing the party has counsel

California: Cannot threaten to bring disciplinary, administrative or criminal proceedings to gain advantage in civil dispute.

27
Q

PR - Duty of Candor

A

Present Facts and Evidence Truthfully

Generally: Duty to present facts and evidence truthfully. Lawyer must not make a false statement of material fact or knowingly offer false evidence to tribunal or fail to correct a previous false statement. An attorney also has a duty to state the law truthfully and cite adverse authority where controlling and on point.

Witnesses and Fees: Lawyer may pay basic expenses of witness and reasonable fees to expert witnesses, so long as not contingent on content of testimony

Ex Parte Proceedings: Must reveal both good and bad aspects of case

Criminal Defendants Who Testify Falsely: Lawyer must permit client to testify in criminal trial even if he reasonably believes testimony will be false. The lawyer must:

  1. Try to convince defendant not to testify falsely
  2. If that fails, request permission to withdraw

ABA: As a last resort, disclose information to the tribunal to set the matter straight

California: Lawyer may call defendant as a witness and question him in ordinary manner up to point of false testimony, then allow defendant to testify in narrative fashion (but cannot use false testimony during closing). The attorney may not disclose privileged or confidential information to the tribunal to set the matter straight.

Other Witnesses: Where lawyer knows witness intends to lie, he should:

  1. Refrain from calling witness, or
  2. Try to convince him not to testify falsely, or
  3. Seek withdrawal, or
  4. Under ABA, disclose enough information to set matter straight
28
Q

PR - Duty to Produce Evidence

A

Cannot Suppress Evidence

Generally: Lawyer cannot suppress evidence he or client has legal obligation to reveal or produce, regardless of duty of loyalty. Also must not obstruct access to or tamper with fruit or instrumentalities of crime. Must turn them over to authorities, but cannot reveal source or statements made in conjunction.

29
Q

PR - Contact with Represented Party

A

Cannot Suppress Evidence

Generally: Lawyer must not communicate about matter directly with another he knows to be represented by counsel unless counsel granted permission or is otherwise authorized by law or court order.

30
Q

PR - Duties of Public Prosecutor

A
  1. No prosecution unless probable cause
  2. Ensure accused advised of right to counsel
  3. Do not seek waiver of pretrial rights from unrepresented accused
  4. Timely disclose exculpatory evidence and mitigating circumstances
  5. Prevent investigators and law enforcement from improper extrajudicial statements
  6. Do not issue subpoena to attorney in criminal proceeding to give evidence about client unless necessary
  7. No prejudicial extrajudicial statements, except statements to inform public of prosecutor’s action
  8. Promptly disclose new, credible and material evidence defendant did not commit offense
  9. Seek to remedy conviction when prosecutor knows of clear and convincing evidence defendant wrongfully convicted
31
Q

PR - Duties to Public

A

A lawyer has an independent duty to the public not to commit fraud, a crime, or some other serious immoral act

32
Q

PR - Duties to Legal Profession

A

ABA: Lawyer who knows another lawyer violated professional rules in a way that raises substantial question as to his honesty or fitness as a lawyer must inform authorities.

California: Lawyer required to report themselves when:

  1. Sued for malpractice 3 times in 12 months
  2. Found civilly liable for fraud, etc.
  3. Sanctioned more than $1,000
  4. Charged with felony
  5. Convicted of serious crime
  6. Disciplined in another jurisdiction
33
Q

PR - Mandatory Withdrawal

A

ABA:

  1. Would violate rules of professional conduct or other law
  2. Lawyer impaired by physical or mental condition
  3. Lawyer is discharged

California:

  1. Would violate rules of professional conduct (not other law)
  2. Lawyer impaired by physical or mental condition
  3. Client acting without probable cause to harass or maliciously injure someone
34
Q

PR - Permissive Withdrawal

A

ABA:

  1. Withdrawal can be done without material adverse effect on client
  2. Client used lawyer to perpetrate crime or fraud
  3. Representation will result in unreasonable financial burden on lawyer
  4. Client persists in criminal or fraudulent conduct involving lawyer’s services
  5. Client insists on taking action lawyer considers repugnant
  6. Client fails substantially to fulfill an obligation regarding lawyer’s services and has warning of lawyer’s withdrawal
  7. Other good cause exists

California:

  1. Client persists in criminal or fraudulent conduct involving lawyer’s services
  2. Client insists on taking action lawyer considers repugnant
  3. Client fails substantially to fulfill an obligation regarding lawyer’s services and has warning of lawyer’s withdrawal
    • Note: Express permission to withdraw for breach of fee or expense agreement
  4. Other good cause exists
35
Q

PR - Withdrawal Procedure

A
  1. Provide timely notice to client
  2. Promptly return any unspent fee and expense advances, and all property and material papers (including work product)

California: Attorney may not hold client’s materials hostage to get paid

36
Q

PR - Duty of Truthful Advertising

A

Must Be Truthful, Not False or Misleading

California—Never:

  1. Guarantee outcome
  2. Quick cash suggestions
  3. Undisclosed impersonations
  4. Undisclosed dramatizations
  5. Contingent fee arrangements without warning of costs (if loser)

California—Probably Not:

  1. Communications delivered to hospital or distressed client
  2. Mailings not clearly labeled
  3. Testimonials without disclaimers
37
Q

PR - Duty to Avoid Solicitation

A

Solicitation involves directed contact with a particular person or persons. Lawyer must not seek fee-paying work by initiating personal or phone contact with prospective client who is not former client, current client, or someone with whom lawyer has personal, professional or family relationship.

Free Services: May solicit without hope of pecuniary gain

Letters: May sent truthful, non-deceptive letters to persons known to face specific legal problem

38
Q

PR - Duty to Make Reasonable Fee Arrangement

A

ABA: Fee must be reasonable and communicated to client, preferably in writing, before or within reasonable time after commencing representation.

California: Fee must not be unconscionable, and must be in writing except where:

  1. Client is corporation
  2. Client states in writing he does not want it
  3. Legal services of same kind client has previously received and paid for
  4. Emergency
  5. Writing is impractical

Contingent Fees: Contingent fee offer must warn client they must still pay costs even if they lose. May be calculated on gross recovery or after costs are deducted, but either way disclosed in writing.

  • ABA: No contingent fee arrangements in domestic relations matters and in the representation of criminal defendants
  • California: Fee arrangements in domestic relations okay if they do not encourage divorce

Fee Splitting:

  • ABA:
    1. Client Consent
    2. No Increase in Fee
    3. Proportional to Work
  • California:
    1. Written Informed Consent
    2. No Increase in Fee

Select Topics - Second Semester (7 decks)

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