Profess Respon. Flashcards
Duties to Public and Profession
- Avoid Unauthorized Practice of Law
- Avoid False or Misleading Advertisements
- To Not Improperly Solicit Clients
Lawyer -Client relationship Formation
- Express agreement
- Implied agreement (prospective client seeks legal services and reasonably believes relationships exists based on lawyer’s actions
- Appointment by the court
Pro Bono Service
Encouraged - 50 hours per year and contribute financially to orgs. that provide services to indient individuals
Accepting Ct. Appts
ABA: lawyer must not seek to avoid appt except for GOOD CAUSE:
* result in violation of RPC or other law
* result in unreasonable financial burden on lawyer
* client or cause so repugnant to lawyer will impair lawyer-client relationship or lawyer’s ability to rep client
CA: Attorney Oath- never to reject for personal reasonas the cause of the defenseless or oppressed
Mandatory Rejection/Withdrawl
- violation of RPC or other Law
- physical/mental condition substantially impairs L’s ability to rep C
- L discharged by client
CA adds: client bringing action/defense/position in litigation/appeal without probable cause and for pupose of harrassing or maliciously injuring any person
Permissive Withdrawl
- accomplished w/out material adverse effect on C’s interests (CA requires C to knowingly and freely assent to termination)
- C persists in criminal or fraudulent course of action involving L’s services
- C already used L’s services to perpetrate crime/fraud
- C fails substantially to fulfill obligation to lawyer and given reasonable warning that L will withdraw if obligation not fulfilled
- Rep rendered unreasonably difficult by client
- client insists on taking action that L considers repugnent/fundamentally disagrees with (not in CA)
- Rep result in unreasonable financial burden on L (not in CA)
- Other good cause
CA - unable to work with co-counsel and withdrawing serve client’s interests, mental/physical condition makes it difficult to continue
Sale of Practice
- Entire practice/field of practice must be sold to one or more lawyers or firms. CA all or substantially all only
- cease to engage in the private practice of law/field of practice in geo area or jurisdiction where practice has been conducted (in house for charitable org ok)CA seller not prohibited from practicing law in sale
- Written notice to clients re sale and right to retain other counsel, possession of files and consent to transfer of files presumed if client takes no action within 90 days of receipt of the notice CA written consent required before transfer but if reasonable efforts made to locate client and no response w/in 90 days of notice consent presumed.
- Client fees must not be increased solely bc sale
- CA confidential info must not be disclosed to a nonlawyer in connection with the sale
Client has final Decision
- whether to accept settlement offer
- what plea to enter
- whether to testify in criminal case
- whether to waive a jury trial in criminal case
Assisting Client in criminal or fraudulent conduct
L must not counsel/assist client in illegal or fradulent conduct but may advise on legal consequences of porposed action. If client insists on pursuing illegal or unethical course of conduct L must withdraw.
**CA ** adds violation of a court rule or ruling
CA adds if CA law conflicts with tribal/federal law must inform client about that law and policy
Limiting Scope of Rep
must be resonable and only with client’s informed consent.
Organizational Clients
- duty is to org not to constitutents
- L must explain this when orgs interst are adverse to those of the constituent with whom L is dealing
- If person associated with org acted/is about to act, in a way that violates a duty to the org or law that might be imputed to org, L must proceed as reasonably necessary to protect org’s intersts. (highest auth in org). If no go then MAY report info to appropriate persons outside of org to extent reporting is necessary to prevent substantital injury to org supercedes duty of confidentiality
- CA - NO outside reporting but may withdraw if highest auth. failed to act
Client with diminished capacity (ABA only)
- while repping C with diminished capacity L must maintain normal L-C relationship but may take protective action if reasonably belive C cannot protect themselves from substantial harm in taking protective action L has implied auth to review confidential infor to extent necessary to protect client
CA no counter part rule
L’s Competence
**ABA: **
L must act competently (with legal knowledge and skill reasonably necessary for the representation). Takes into account:
* complexity of legal matter
* general experience
* experience in feild in question, and
* prep and study for case
CA
adds mental, emotional, and physical ability reasonably necessary to perform service
- L may become competent through prep or by consulting with other lawyers.
- L may act in emergency situation
- must act with reasonable diligence in repping client
*
CA L must not intentionally, recklessly, or with gross negligence fail to perform legal services with reasonable competence or diligence. (not disciplied for minor isolated acts)
Communication: Client informed
L must REI
* Comply with reasonable requests for info.
* Explain the matter to the client to the extent necessary to permit C to make informed decisions
* Keep C reasonably informed about status of the matter (all significant developments)
Communication: disclosure of lack of liability Ins
CA ONLY: when L does not have professional liabilty insurance must inform:
* in writing at time of engagement
* if ceases within 30 days
Not required when rep will not exceed 4 hours, L is acting as gov’t lawyer/inhouse counsel, emergency
Comm: Plea Bargain and Settlment offers
ABA
must notify C of settlement offer or plea bargain
* UNLESS -C previously indicated proposal would be un/acceptable or authorized L to accept/reject offer.
- CA
- must always promptly communicate the ACT (amount, conditions and terms) of written offer of settlement to client/person with authroity to accept
- Client is entitled to make decisions regarding substantive issues that will affect outcome of their case.
- Attorney must consult with client and abide by client’s decision in certain matters including settlement offer.
- Criminal case - all terms and conditions of proposed plea bargain/dispositive offer
Comms withholding
L may delay transmission of info if client woudl be likely to react imprudently to immediate comm.
In CA only if client woudl be likely to react in a way that may cause imminent harm to C or others
Duty of Confidentiality
- Broader than A-C privilege.
- L must not reveal info relating to rep of C regardless of source of info unless some exception applies.
- Applies to current, former, and consults with prospective clients
- L must also take reasonable meaures to prevent unauthorized access to or inadvertant disclosure of C’s confidential info - reasonableness of L’s efforts depends on factors as sensitivity of info, liklihood of disclosure absent appropriate safeguards, cost and difficulty of implementing such safeguards, extent to which the safeguards adversely affect L’s ability to rep clients
CA disclosure requires
* C’s informed consent
* impliedly authorized to carry out rep, or
* exception applies (and then only to extent necessary to meet each exception)
Exceptions to Duty of Confidentiality - ABA
CAFE DO!
* Compliance Court Orders/Laws -
* Attorney’s Defense - to collect legal fee or defend L from claim of wrongdoing
* Financial Losses - prevent C from committing crime or fraud that is reasonably certain to cause substantial financial loss to a person, if C is using L’s services in furtherance of crime/fraud. Also allowed to rectify or mitigate financial loss if crime is already completed
* Legal Ethics Advice - obtain legal ethics advice
* Death/Bodily Harm - to prevent reasonably certain death or substantial bodily harm
* Organizational Conflicts - to detect or address conflicts of interest resulting from org. change (mergers etc… - standard checks are impliedly authorized)
Exceptions to Duty of Confidentiality - CA
Don’t be a CAD
* Compliance with Court Order/other law (but not other ethics rules)
* Attorney’s defense- collect a legal fee or defend L from charge of wrongdoing
* Death/Bodily Harm - ONLY to prevent a future criminal act that is likely to result in death or substantial bodily harm. L must if reasonable under the circumstances make good faith effort to persuade C not to comit/continue criminal act or to pursue course of conduct that will prevent the crime. L must inform C of L’s ability/decision to reveal info
A-C Privilege
Allows C to refuse to testify and prevent L from testifying in court about confidential communications between the two or their respective agents.
Perpetual survives death (CA law terminates when C’s estate is settled and personal rep discharged)
Exceptions to AC Privilege
- L’s services to enable or aid anyone to commit future crime/fraud.
- Communication relevant to issue of breach of duties arising out of L-C relationship
- Civil Litigation - persons formerly joint clients
- variety of situations re competency or intent of C who has attempted to dispose of property by will or inter vivos transfer
C law provides additional Exception when necessary to prevent criminal act that the lawyer reasonably believes is likely to result in a person’s substantial bodily injury or death.
Duty of Loyalty - Imputation of Conflicts
- L cannot take on a matter bc conflict of interest then other Ls in firm are also barred from taking on that matter.
EXCEPTIONS:
* C is personal to disqualified L and would not materially limit the rep of the client by other Ls in the firm
* when based on L’s prior representation, employment etc… and L is properly screened from matter and affected persons given notice
CAN BE WAIVED
Current Client Conflicts
- rep of one client directly adverse to another client who L reps in same or separate matter
- significant risk that the rep of the client will be materially limited by L’s own interest or by L’s rsponsibilties to another client, former client or 3rd Person
L may represent a client if certain conditions are satisfied including the clients’ informed consent, confirmed in writing.
CA rquires informed written consent meaning that both the disclosures and the client’s consent must be in writing.
Resolution of Current Client Conflicts
Can Lawyer Be In?
ALL 4 CONDITIONS Satisfied:
1. L reasonably believes they can competently and diligently rep the C despite conflict
2. Rep is not prohibited by law
3. Rep does not involve asserting a claim by one client against another client represented in the same proceeding before a tribunal (Both sides)
4. Each affected client gives informed consent confimred in writing. – CA requires both disclosure and consent from client be in writing.
5.
Written Disclosure Requirement
CA only
Following relationships require written disclosure to client:
* L /L in firm has legal, business, financial, professional, or personal relationship with, or responsibility to, a party or witness in the client’s matter.
* L/L in firm is an immediate family member/lives with/intimate personal relationship with/is a client of the firm of another party’s attorney in the client’s matter.
Duty of Loyalty: Business transactions with Pecuniary Interests adverse to Client
Fair Disclosure Is Advised
L must not enter into business transaction with a client or knowingly acquire an ownership, possessory, security, or money interest that is adverse to C unless ALL conditions Satisfied:
1. Terms are Fair to C
2. Terms/L’s role in Transaction fully disclosed to C in writing
3. C is Advised in writing that they should get independent advice from L before entering into arrangement
4. C gives informed consent in writing that C signs
- not apply to products/services that C generally markets to others.
Misuse of Client’s confidential Information
L must not use Confidential Information to a client’s disadvantage unless client gives informaed consent or some exception to the duty of confidentiality applies.
Substantial Gifts from Clients
L must not:
* Solicit substantial gift or
* Prepare an instrument on behalf of the client giving a substantial gift to the L (or L’s relative). CA more flexible - oka if advised by independent lawyer who has provided a certificate of independent review
Not an issue if C is related to the L/L’s relative
Financial Assistance to Client
not in connection with pending or contemplated litigation with the following exceptions for court costs and litigation expenses:
* Advance Court costs and litigation expenses and repayment may be contingent on outcome of case
* If C indigent then L may pay court costs and litigation expenses outright
* L representing indigent client pro bono may provide modest gifts for basic living expenses but cannot promise/imply availability / seek or accept reimbursment or publicize or advertise a willingness to provide such gifts to prosepctive clients
**CA ** prohibits L from buying potential client with promise to pay potential client’d debts
after hired L may lend client money for any purpsoe if the client gives them a written promise to repay the loan.
Specifies that with the client’s consent the L may pay or agree to pay client’s expenses to a third party from funds collected for client as a result of the representation.
Aggregate Settlement Agreements
L must not participate in the making of an aggregate settlment agreement unless:
1. L discloses to each client the existence and nature of all the claims or pleas involved and the participation of each person in the settlment
2. each client givesn informed consent to the agreement in a writing signed by the client.
Compensation from someone other than C
L must not accept it unless
* C gives informed consent
* no interference with L’s independence of professional judgment or lawyer-client relationship and
* Confidential information relating to representation remains protected
CA requires informed written consent from client AND disclosure and consent are not required at all if :
1. non disclosure or the compensation is otherwise authorized by court order or
2. L is rendering legal services on behalf of public agency/ non profit
L may get client’s consent after the fact if emergency
Limiting Liability for Malpractice
IC Reasonable time Independently repped BUT NEVER in CA
ABA:
* L must advise unrepresented/former client within they have a malpractice dispute that C should retain independent counsel
* L must give C reasonable chance to obtain consult with IC re dispute.
* L msutnot make agreement unless C is independently represented in making the agreement.
CA Cannot prospectively limit malpractice liability under any circumstances.
Aquiring Literary or media rights
Must not for current representation of the case however they may after client’s legal matter is entirely completed appeals and all.
CA did not adopt this - treated as a pecuniary interest adverse to the client : Fair, and in writing: advised to seek independent counsel, full disclosure, informed consent (signed)
Proprietary Interest in Cause of Action
Must not acquire proprietary interset in cause of action or subject matter of litlgation the lawyers is conducting for a client. except:
1. acquire a lien authorized by law to secure L’s fees and expenses AND
2. contract with client for reasonable contingent fee in civil case
Contingency Fee Cases
Contingency fee is a fee that is dependent on the successful resolution of a client’s case payable from judgment proceeds
ABA FC, ED, TD, EO (For Christ’s education deficit, to Day , Everyone out)
Must be reasonable, written, signed by C and contain:
* how fee is calculated, incl. percentage L gets if case is settled before trial,
* what expenses to be deducted from recovery
* whether deductions made before or after contingency fee calulated; and
* what expenses client must pay regardless of outcome.
At end of case must give client written statement : outcome of case, remittence to client and how remittence was calculated.
CA If reasonably foreseeable greater than $1,000 then:
* in writing (unless emergency or otherwise impractical)
* fee not set by law and subject to negotiation
* how client will be charged for work not covered by fee agreement.
NOT ALLOWED in CRIMINAL AND DOMESTIC FEE CASES
Attorney Fees
Fees generally/amount -
ABA - must be reasonable,
Factors - time and labor, novelty/difficulty of the work; customary fee within the locality; reputation of attorney, fixed or contingent.
CA not illegal or unconscionably high. (based on facts and circumstances existing at time of agreement except where parties contemplate that the fee affected by later events) Factors for unconscionability:
- L failed to disclose material facts
- whether L engaged in fraud or overreaching in negotiating or settling fee
- relative sophistication of L and client
- whether c has given informed consent to fee
CA requires a writing unless under $1,000, corporate client, client states in writing they do not want fee agreement, routine services for regular client, or emergency/impracticality
Participation in Foreclosure or Sale
CA only
L must not
directly/indirectly purchase property in action or proceeding inwhich L /L personally or professionally afiliated is acting as lawyer for party or executor etc…
or
Represent the seller in an action/proceeding in which purchaser is spouse/relative of L or other L in firm and employee of the L or the firm.
