Professional Responsibility 1-15 Flashcards
When is a Lawyer-Client Relationship formed?
When:
A person seeks legal advice from a lawyer;
AND
The lawyer either:
Manifests consent to provide services; OR
Fails to manifest a lack of consent andknows the person would reasonably rely on the lawyer to provide legal services.
*In CA, the reasonable perception of a purported client may determine if such person is deemed a client of the lawyer.
Priority: HIGH
Generally, a client controls the goals of the representation while the lawyer controls the means.
When may a lawyer limit the scope of the representation?
When:
It’s reasonable under the circumstances; AND
The client gives informed consent.
Priority: HIGH
Duty of Competence
What does the Duty of Competence require of a lawyer?
To possess the legal knowledge, skills, preparation, andthoroughness to effectively represent the client.
*Lawyer cannot take a case in an unfamiliar area of law, UNLESS he: (a) associates with another competent lawyer; OR (b) acquires sufficient learning & skill before performance.
Priority: HIGH
Duty of Competence
What does incompetenceexpose a lawyer to?
Discipline by the bar;
Disqualification from a litigation; AND/OR
A civil malpractice lawsuit.
Priority: HIGH
Duty of Competence
In California, when does a lawyer breach the Duty of Competence?
If he intentionally, recklessly, acts with gross negligence, or repeatedly fails to perform legal services with competence.
Priority: HIGH
What does the Duty of Communication require?
Informing a client when informed consent is required;
Keeping the client reasonably informed on status;
Promptly complying with requests for info (i.e. phone calls and inquiries);
Consulting with the client on strategy decisions and on matters requiring their consent; AND
Advising when the lawyer knows a client expects assistance not permitted by ethical rules.
Priority: HIGH
Under the ABA, when MAY a lawyer disclose Confidential Information?
When:
The client consents;
Ordered by law;
It’s needed to defend a malpractice action;
To prevent death or substantial bodily harm;
To prevent the client from committing a crime/fraud that will result in substantial financial loss; OR
To secure legal advice about complying with ethical rules.
Priority: HIGH
In California, when MAY a lawyer disclose Confidential Information?
When:
The client consents;
To prevent a crime that will result in death or substantial bodily injury;
It’s needed to defend a malpractice action or in a suit to recover legal fees; OR
The lawyer is compelled by law or court order;
Priority: HIGH
In California, what MUST a lawyer do before disclosing Confidential Informationpursuant to the death / substantial-bodily-injury exception?
Before disclosure the lawyer must:
Make a good faith attempt to counsel the client out of committing the crime; AND
Inform the client of the lawyer’s ability/decision to disclose the information.
Priority: HIGH
What must occur when a lawyer receives Confidential & Privileged Documents inadvertently?
(ABA vs. CA)
ABA: Lawyer has a duty to notify opposing counsel of any documents accidentally received.
CA: Must do three things:
Refrain from examining materials any more than necessary to determine if privileged;
Immediately notify the sender; AND
Proceed to the resolve the situation.
*NOT required to return the documents under ABA or CA.
Priority: Low
What does the Duty to Safeguard Property require?
Lawyer must hold property of a client separate from the lawyer’s own property. Funds must be kept in a separate Attorney Trust Account.
In addition, a lawyer MUST return client property upon request or at the end of representation.
*In CA, a client case file cannot be withheld for the purpose of getting paid.
Priority: Medium
When does a ConcurrentConflict of Interest exist?
If:
The representation is directly adverse to another client; OR
There is a significant risk that the representation will be materially limiteddue to personal interests orresponsibilities to another present/former client or third-party.
Priority: HIGH
When MAY a lawyer represent a client even though a Concurrent Conflict of Interest exists?
When:
Lawyer reasonably believes that he will be able to provide competent and diligent service;
It’s not prohibited by law;
Lawyer is notrepresenting parties on opposite sides of the same litigation; AND
Each client affected by the conflict gives informed consent.
CA = informed written consent
ABA = informed consent, confirmed in writing
Priority: HIGH
In what situations is a lawyer prohibited from representing a client?
If:
It’s prohibited by law; OR
Representing parties on opposite sides of the same litigation.
Priority: HIGH
When is a lawyer NOT allowed to represent a client due to a Former Client Conflict of Interest?
Unless the former client gives informed consent, the lawyer CANNOT:
Represent another client in the same or substantially related matter,
When the person’s interests are materially adverse to the interestsof the former client.
*Lawyer also CANNOT represent a client of their previous firm if: (1) the above 2 factors are present, AND (2) he acquired confidential info material to the former client matter.
Priority: HIGH
