Professional Conduct Flashcards
THREE ROLES OF LAWYER
Representative of clients; Officer of the Court; Public citizen
ATTORNEY DISCIPLINE PROCESS
Attorney Grievance Commission is the PR Court System; Bar Counsel - Prosecutor; Court of Appeals HAS review and final say
THE ATTORNEY-CLIENT RELATIONSHIP
The attorney-client relationship is contractual, but does not require consideration and exist even in the absence of a contract. The lawyer is the client’s agent and owed him fiduciary duties.
ATTORNEY’S FEES RULE:
Attorney fees and expenses must be reasonable, meaning non-excessive and clearly communicated to the client within a reasonable time after representative commences. Oral or written retainers are allowed. Fees and expenses greater than 50% of award, is excessive on the exam.
REASONABLENESS FEE FACTORS ON EXAM
Attorney Experience and Expertise, Length and Complexity of the Case, Affect of the Case on Attorney’s Business.
CONTINGENCY FEE RULE
Contingency fees are permitted except in criminal and family law matters. All contingency fees must clearly communicated in writing and signed by the client. The lawyer must give a written statement to the client of the final outcome at the conclusion of the representation and a financial accounting.
FEE COLLECTION:
Attorney can collect fees before, during, or after representation. Advance Payments must be deposited in a trust account and withdrawn only as earned. Fee disputes must be settled via arbitration first, before bring suit.
FEE SHARING:
Lawyers not in the same firm can share fees, if Client gives informed consent, confirmed in writing to joint representation. If fees are divided based on % of work each attorney does, each lawyer is liable for his own malpractice. If fee sharing is not based on work completed, attorney’s are jointly liable. Fee may not be shared with non lawyers.
DUTIES OWED TO THE CLIENT: “A lawyer must be “C . . C.O.I.L.E.D.”
- C = Confidentiality
- C = Competence
- O = Objectives
- I = Information / Communication
- L = Loyalty, a.k.a. conflicts of interest
- E = End of Representation
- D = Diligence
DUTY OF COMPETENCE
Lawyer must act with sufficient legal knowledge, skill, thoroughness and preparation. Level of sufficient competence is determined by the circumstances.
DUTY TO ABIDE BY OBJECTIVES / SCOPE OF REPRESENTATION & DECISIONS MAKING:
The client determines the objectives of the representation and the lawyer must obey, unless illegal or repugnant, in which case lawyer may withdrawal. Lawyer determines the means to achieve objectives.
Decisions Specifically Allocated to the Client (T - POT):
- T = Jury or Court Trial (criminal cases only)
- P = Plea or settle
- O = Objectives of the Representation
- T = Testify or not (criminal cases only)
How to handle a client with Diminished Capacity:
Allow client to make any decisions he is competent to make and when deciding for the client, act in his best interest. Can seek appointment of guardian for client to make the decisions.
DUTY OF INFORMATION / COMMUNICATION:
The lawyer has a duty to keep Client reasonably informed with provide prompt responses.
DUTY OF DILIGENCE:
Duty to act in a timely manner on the client’s behalf, because an unreasonable delay can hurt clients. On exam, slow lawyers = diligence issue.
DUTY OF CONFIDENTIALITY:
The lawyer must not disclose confidential information obtained from Client with limited exceptions. Generally, presence of a third person destroys confidentiality… unless it is someone the client reasonably expects confidentiality from, such as one that serves some lawyer-client interests.
MANDATORY CONFIDENTIALLITY EXCEPTIONS
Mandatory disclosure required if necessary to prevent/expose Litigation Fraud (perjury/doctored evidence) or to avoid assisting client’s future fraud or crime against a third person.
Discretionary Confidentially Disclosures
Disclosure of Confidential Information is discretionary to benefit client, prevent substantial physical injury to someone, prevent economic harm, seek advice about RPC compliance, comply with a court order, or in suits between lawyer and client.
DUTY OF LOYALTY:
No interest of the attorney’s can EVER interfere with his duty to his client. This often involves conflicts of interest.
Conflict of Interest Analysis:
Identify the client of clients. Determine if conflict is directly adverse or only potentially adverse. Determine is Conflict is consentable, if so obtain informed consent.
When is a conflict consentable?
Only if lawyer subjectively and objectively believes that he will be able to provide competent and diligent representation to each affected client, despite the conflict. Directly adverse COI is not consentable, thus lawyer cannot represent one or more clients.
Business Transactions Rule
Lawyer is prohibited from entering into a business, financial or property transaction with a client, unless it is fair and reasonable for the client, the terms are disclosed in plain English writing, the client gives informed consent after reasonable opportunity to seek advice from outside counsel.
Big Gifts Rule
Lawyer can NOT solicit a substantial gift from a client, nor draft a document giving herself or a related person a substantial gift or bequests; unless the client is Lawyer’s close relative, or represent by independent counsel as to the gift giving. Unsolicited and solicited small gifts are ok.
Media Rights Rules:
A Lawyer cannot negotiate media / literary rights to herself concerning the subject of the representation until AFTER the representation.
Financial Assistance Rule
Lawyer cannot provide Financial Assistance to a Client except the he is permitted to advance litigation expenses if operating on contingency fee, or pay litigation EXPENSES of a poor Client.
