Prof. Responsibility Flashcards
Formation of Lawyer-Client Relationship
Relationship formed when 1) a person seeks legal services from a lawyer, and 2) the lawyer either a) manifests consent to provide services, OR b) fails to manifest lack of consent to do so and knows the person would reasonably rely on the lawyer to provide legal services.
Proper Scope of Lawyer-Client Relationship:
Generally, a client controls the objectives of the representation, and makes substantive decisions (accepting settlement offers, pleading guilty, testifying, waiving jury trials). The lawyer controls the means to accomplish those objectives (arguments raised on appeal, witnesses called), BUT must consult with the client as to the means.
- Limiting the Scope: attorney may limit the scope if 1) it’s reasonable under the circumstances; and 2) the client gives informed consent.
Solicitation of clients
Lawyer cannot solicit a person by in-person, live telephone, or real-time electronic contact when the motive is for pecuniary gain. EXCP: 1) person is a lawyer, 2) close relationship (family, personal, business), or 3) (ABA only) routinely uses the type of legal services offered. No harassment in any circumstance, or continuing if denied.
- DIST: real-time electronic contact does not include email, chat rooms, or text messages, as they may be easily disregarded.
Fee Agreements:
Per ABA, only contingency agreements need to be in writing.
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CA: all agreements must be in writing unless 1) fee charged is $1,000 or less, 2) the work is routine work for a client, 3) the client is a corporation, 4) client waives agreement in writing, 5) emergency, or 6) circumstances rendering it impractical.
- Agreements include: how compensation is calculated, nature of legal services, and responsibilities of lawyer.
Duty of Competence:
Legal knowledge, skills, preparation, and thoroughness necessary to effectively represent the client. Lawyer cannot take a case in an unfamiliar area of law UNLESS: 1) associating another lawyer, or 2) acquiring sufficient learning and skill prior to performance. DIST: emergency OK.
- CA Distinction: One negligent strike OK. Lawyer only subject to discipline if 1) gross negligence or above, OR 2) repeatedly fails to perform legal services with competence. ALSO includes a mental and emotional facet.
- Discipline includes: 1) bar sanctions, 2) disqualification from litigation, AND/OR, 3) a civil malpractice suit.
Duty of Communication:
Attorney must keep the client reasonably informed about any significant developments relating to the representation. Includes: 1) any area where informed consent is required, 2) status updates, 3) prompt compliance with requests for information, 4) consulting client with strategy decisions (including all settlement offers), 5) advising the client when lawyer knows client may violate ethical rules.
Duty of Diligence:
Lawyer shall act with reasonable diligence and promptness in representing a client, pursuing the case until the end (offshoot of zeal).
- CA: One negligent strike OK. Lawyer cannot fail to act with diligence with 1) gross negligence or above or 2) repeated failings.
Mandatory Withdrawal:
Lawyer MUST withdraw if 1) discharged; 2) physical or mental condition of lawyer exists that materially impairs relationship (CA must be unreasonably difficult); or 3) the representation will result in a violation of an ethics rule or other law.
- CA: must also withdraw if he should know client brings action without probable cause for the purpose of maliciously injuring a person.
- Method of withdrawal: lawyer must 1) provide timely notice to the client, and 2) promptly return any unspent legal fees. Cannot withhold client’s materials. If lawsuit has been filed, lawyer must obtain the court’s approval to withdraw.
Permissive Withdrawal:
Lawyer MAY withdraw if: 1) client consent, 2) client used lawyer’s services to commit a crime or fraud, 3) client fails to substantially fulfill an obligation after warning, 4) representation rendered unreasonably difficult, or 5) other good cause exists.
- ABA includes: 1) no material damage to client interests, 2) repugnance, or 3) unreasonable financial burden on attorney.
- CA: also includes 1) unwarranted claim, 2) or conditions making representation difficult (co-counsel, mental or physical conditions).
Duty of confidentiality to individual (ABA):
Lawyer must maintain the confidentiality of all information relating to the representation of a client. Broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and (potential) client, regardless of a client’s request.
- Per ABA, Lawyer may disclose when: 1) client consents, 2) against ethics rules, law, or court order (e.g., perjury), 3) defend malpractice, 4) prevent death or substantial bodily harm, 5) prevent client from committing a crime or fraud resulting in substantial financial loss, or 6) to secure legal advice re: ethics.
Duty of confidentiality to individual (CA)
lawyer must maintain the confidentiality of all information relating to the representation of a client. Broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and (potential) client, regardless of a client’s request.
- Per RPC, lawyers may only disclose confidential information to prevent a future criminal act that is likely to result in death or substantial bodily harm. CA courts have also recognized: 1) defending the lawyer or collecting a fee, OR 2) complying with court order or other law (but other law will usually buckle to confidentiality).
Duty of confidentiality to corporation:
if matter violates law, legal obligation, or will result in substantial injury to the organization, the lawyer may refer matter to higher authorities within the organization. After reporting up, ABA permits outside disclosure if necessary to prevent substantial injury.
- CA only permits disclosure if necessary to prevent death or substantial bodily harm. Courts have found other law may compel, but will probably yield to confidentiality.
Duty of Loyalty (General):
lawyer owes client a fiduciary duty of loyalty, meaning he must act in the client’s best interest and avoid conflicts. This duty requires that the lawyer not represent a client when a conflict exists. Further, a lawyer cannot engage in self-dealing or act in his own interest rather than the client’s best interest.
Conflict of Interest, Current Client:
Lawyer may not represent a client when a conflict of interest exists without informed consent.
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Concurrent conflict of interest exists if: 1) the representation is directly adverse to another’s client; or 2) there is a significant risk the attorney’s representation will be materially limited by a) personal interests or b) responsibilities to another client or person.
- EXCP: Lawyer MAY represent client with conflicting interest if: 1) he reasonably believes he will be able to provide competent and diligent representation; 2) the representation is not prohibited by law; 3) he’s not representing adverse clients; and 4) each client gives informed written consent.
- CA Disclosure: lawyer must provide written disclosure when the lawyer: 1) has (or knows a partner has) a significant personal involvement (family, personal, business); OR 2) reasonably should know another party’s lawyer has significant personal involvement with lawyer or firm (family, client).
Conflict of Interest, Former Client:
Lawyer may not represent a client when a conflict of interest exists without informed consent.
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Attorney’s former clients: without informed consent, lawyer cannot represent another person on the same or substantially related matter when the person’s interests are materially adverse to former client.
- Attorney may not use or reveal confidential information to the detriment of a former client.
- Firm’s former clients: without informed consent, lawyer cannot knowingly represent a person in the same or a substantially related matter that firm previously represented client: 1) whose interests are materially adverse, and 2) about whom the lawyer acquired confidential information material to the matter.
