Prof Responsibility Flashcards
1
Q
Conflict of interest
A
- Concurrent conflict: must avoid
- directly adverse to interests of another client; or
- significant risk that
- representation materially limited by L’s
- - personal interest,
- - another client,
- - former client, or
- - 3P - Exceptions to concurrent conflicts (ABA)
- informed written consent
- L’s reasonable belief can work diligently and competently
- not prohibited by law
- claims not against each other - Exceptions to concurrent conflicts (CA)
- informed written consent
- only need written disclosure (not consent) if conflict arises from L’s personal interests or prior relationships
- no reasonable lawyer standard
- applies to both potential and actual concurrent conflicts - Aggregate settlements
- L cannot make for 2 or more clients
- unless informed written consent - CA ok if L represents insured and insurer
- Business transactions ok if:
- terms fair/reasonable
- terms fully disclosed in writing to client
- advised to seek independent counsel
- informed written consent - Former govt employee
- may not represent in private
- if L participated personally and substantially
- unless informed written consent - Gifts
- L can’t solicit substantial gifts
- prepare an instrument that gives gifts
- unless related
- CA: L can accept gift if fair and no undue influence - Proprietary interest
- L cannot acquire
- unless lien for fees or contingency in civil case - Financial assistance (ABA)
- only for advancing
- court costs/litigation expenses
- in contingency cases
- or indigent clients - Financial assistance (CA)
- after L is hired
- ok to loan if written IOU - Compensation by 3P
- informed consent
- no interference with L and client
- information remains confidential - Organization
- L acts for best interest of organization only
- if L knows associated person engaged in wrongdoing
- likely to result in substantial injury to organization
- L refers to internal higher authority
- ABA: if needed, refer to outside authority
- CA: if needed, resign; no outside referral - Imputed disqualification
- conflict for L applies to entire firm, unless:
- - based on L’s personal interest, or
- - former client and firm
- - timely screened
- - written notice to former client/certify compliance
- client can waive - L terminates firm
- firm ok to represent client with interest adverse
- to previous client of L
- unless matter substantially the same, and
- any remaining L in firm has confidential information - L has a duty of loyalty to client and may never place his own interests above that of his client
2
Q
Duty to communicate
A
- promptly inform client
- about settlement, offers, pleas
- status of case
3
Q
Scope of representation
A
- L takes actions and legal strategy to represent client
2. Client decides substantive issues: pleas, offers, settlements, jury trial issue
4
Q
Duty of confidentiality
A
- L cannot reveal information relating to representation, unless:
- informed consent
- impliedly authorized (ABA)
- L reasonably believes necessary to:
- a. prevent death or substantial bodily injury
- - i. CA: disclosure optional
- – 1. try to dissuade first
- – 2. inform client of planned reveal
- b. prevent crime/fraud of financial injury (ABA)
- c. mitigate/rectify substantial financial injury (ABA)
- secure legal advise (ABA)
- establish defense for L (ABA)
- comply with law (ABA)
5
Q
Attorney-client privilege
A
- Attorney-client
- person or corporation
- confidential communication is intended
- professional service is purpose
- holder: client
- lasts until:
- a. FRE: after death
- b. CA: estate settled
- exceptions:
- a. further crime/fraud
- b. dispute w/ L
- c. CA: prevent death/serious bodily injury
6
Q
Fees
A
- ABA: reasonable fees
- time limitations
- experience, reputation, ability
- nature and length of relationship
- time, labor, novelty, difficulty
- fee customarily charged
- likelihood to preclude other employment
- amount involved/results obtained
- whether fixed or contingent fee
(TENT FLAW) - CA: not unconscionable fees
- Fee agreements must state
- how fee calculated
- nature of services
- responsibilities of L and client - CA: fee agreements > $1000
- in writing, unless:
- a. corporate client
- b. client waives writing in writing
- c. emergency
- d. previous client and similar service - Fee disputes: arbitration
- CA: required
- ABA: encouraged - Contingency fee agreement
- in writing
- signed by client (and L in CA)
- method for fee and %
- expenses to deduct and when
- CA: also related matters not covered in agreement
- CA: negotiable unless against health care provider (set % then)
- ABA: not for domestic/criminal cases
- CA: domestic ok if does not promote divorce - Division of fees
- prohibited with non-L
- with Ls ok if:
- a. proportionate to work
- b. client agrees in writing
- c. ABA: total fee reasonable
- d. CA: total fee not unconscionable and full disclosure - Referrals
- don’t give value, unless:
- qualified referral service approved by authority
- CA: gift ok if not for consideration, promise for future/continue
- reciprocal ok if not exclusive and client informed
7
Q
Duty of competence/care
A
- knowledge, skill, thoroughness, preparation
- CA: includes diligence and mental, physical, emotional ability
- CA: ok to associate with competent attorney or become one
- ABA: duty of diligence separate
8
Q
Safekeeping property
A
- client property separate from L’s
- accounting kept for 5 yrs.
9
Q
Sexual relations
A
- ok if preexisting, consensual
- CA: if not preexisting, ok but no:
- a. require/demand for representation
- b. coerce, intimidate, or use undue influence
- c. continue if makes incompetent
10
Q
Withdrawal
A
- Shall if:
- violation of rules
- mental/physical condition
- ABA: discharged
- CA: knows client’s action to harass - May if:
- fraud/crime using L
- client’s action repugnant to L
- client fails to fulfill obligation
- good cause
- ABA: unreasonable financial burden on L
- CA: client has no good faith; unreasonable; can’t work with co-counsel
11
Q
Advertising/solicitation
A
- No false/misleading communication
- No live or in-person soliciting
- CA: presumes invalid if:
- guaranty, warranties, results
- testimonial without disclaimer
- delivery to potential client not in correct mental, etc. state
- delivery to accident/hospital
- dramatization not labeled
- no fee without recovery label unless client cost disclosed - Name and address required
- Labeled as advertising
- Specialist if approved
12
Q
Fairness
A
- Other party
- represented parties need L
- unlawfully obstruct evidence
- disobey court rules
- frivolous discovery request
- assert personal opinions at trial
- request others to refrain from giving relevant information
- prosecutors must give D exculpatory evidence - Court
- no false statements
- fail to disclose adverse legal authority
- offer false evidence
- no ex-parte influence jurors, judge
- no extrajudicial statement if material prejudice proceedings
13
Q
Unauthorized practice
A
- no partnering with non-L
- liable for other L violation of PR if ratify or supervise and could mitigate
14
Q
Reporting ethical violations
A
- ABA: must report another L violation
- CA: permits but not required
15
Q
Duty to public/profession
A
- no fraud/crime/frivolous claims
- CA: no harass/threaten
