Professional Responsibility Flashcards
When is a lawyer subject to discipline? (6 plus CA disc distinction)
- Violating or attempting to violate the RPC, either individually or through acts of another
- Committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer in other respects
- Stating or implying an ability to improperly influence a gov agency or official to achieve results by illegal or unethical means
- Engaging in conduct prejudicial to the admin of justice
- Knowingly assisting a judge or judicial officer in violating the rules of judicial conduct or other law.
- Engaging in harassment or discrimination in conduct related to the practice of law based on a protected characteristic (but does not affect a lawyer’s ability to reject a case or engage in legitimate advocacy).
CA: prohibits unlawful discrimination, harassment, and retaliation on the basis of protected characteristic
i. Lawyer must not permit unlawful disc of employees
ii. Person who violates must notify that State Bar of admin action premised on the conduct
What is the duty of confidentiality?
Rule: A lawyer may not reveal any information relating to the representation of a client, regardless of the source of the information, unless some exception applies or client gives informed or implied consent.
Where an exception applies, the lawyer may only disclose a client’s confidential information to the extent necessary to meet each exception.
- counts for info during consultations
- lawyer must take reasonable measures to prevent inadvertent disclosure of client’s conf info
5 exceptions to duty of confidentiality
- consent - implied consent to carry out rep
- defending yourself - malpractice, disciplinary action, fee dispute, seeking ethics opinion (ABA only)
- a. A lawyer may disclose confidential information to prevent reasonably certain death or substantial bodily harm.
CA: disclosure must be to prevent a future criminal act that is likely to result in death or substantial bodily harm. Before disclosure (if reasonable under the circumstances), lawyer must:
i. make a good faith effort to persuade your client not to commit the act,
ii. inform the client of your decision to reveal his confidences.
- Financial Loss ABA only - a lawyer may disclose confidential information to prevent the client form committing a crime or fraud that is reasonably certain to cause substantial financial loss to a person, if the client is using/has used the lawyer’s services in the furtherance of the crime or fraud.
Disclosure is also allowed to rectify or mitigate the financial loss if it’s already completed. - compelled by final court order - you may reveal confidential information to detect or address conflicts of interest resulting from organizational change.
Duty of loyalty to clients
You have a duty of loyalty to your client. You have a conflict of interest if your representation is: directly adverse to your client (you act as an advocate in one matter against a person you currently represent in some other matter), or if there is a significant risk that your representation will be materially limited by your relationship to another current or former client, your personal interest, or a third person (i.e. your independent professional judgment to consider, recommend, or to carry out appropriate actions for a. client is compromised or foreclosed).
What is imputation and what are the exceptions?
When one lawyer has a conflict of interest, it is imputed to other lawyers in the same firm. UNLESS
(1) the conflict is personal to the disqualified lawyer and would not materially limit the rep of the client by other lawyers in the firm or
(2) when the conflict is based on certain situations involving the disqualified lawyer’s prior and the lawyer is screened from the matter and affected persons are given notice
Imputation can be waived by affected clients.
What is the rule for waiving a conflict?
Most conflicts are tolerated on a case by case basis if:
(1) you reasonably believe you can competently and diligently represent the client despite the conflict.
(2) the representation is not prohibited by law
(3) the representation doesn’t involve asserting a claim by one client against another client represented by the lawyer in the same proceeding before a tribunal
(4) each client gives informed consent, confirmed in writing
- CA: informed written consent –> both informing and consent must be in writing.
CA rule re disclosure of relationships
If no “sig risk” of “material limitation,” there must be written disclosure if:
(1) lawyer or lawyer in her firm has a legal, business, financial, professional, or personal relationship with or resp to a party or witness in the client’s matter
(2) the lawyer or another lawyer in firm is an immediate family member of, or lives with, or is in an intimate personal relationship with, or is a client of the firm of, another party’s attorney in the client’s matter.
If there is a sig risk of material limitation, must be INFORMED WRITTEN CONSENT
What is the rule for representing a new client against former client?
When a layer represented former client in a matter, cannot represent new client against former client in same or substantially related matter without consent.
It is substantially related if:
(1) same transaction or dispute
(2) subst risk that conf factual info would not normally have been obtained in prior rep would materially advance the new client’s position in the subsequent matter
What is the rule on misuse of client’s confidential information?
can’t use client’s conf information to their disadvantage without consent or unless exception applies
What is the rule for gov work and screening?
Former Government Work: if you were a gov lawyer who worked “personally and substantially” on “matter” you cannot work on that same matter in later private practice without the gov’s consent. [matter = specific parties, facts, dispute]
imputation can be cured if
i. You are screened off
ii. You don’t share fee in any way
iii. Notice to gov employer (don’t need to consent)
May third-party neutrals work on the same matter as a lawyer?
judges, clerks, and third-party neutrals cannot move to private practice and work on the same matter without consent of the parties
What are the rules on gifts from clients?
Must not solicit any substantial gift or prepare instrument for client if it provides substantial gift to lawyer or lawyer’s relative unless client is related to gift recipient
CA: may prepare instrument so long as client has been advised by an independent lawyer who provided certificate of independent review
May you limit malpractice liability?
ABA: yes, if client is independently represented in making the agreement
CA: no, never
What is the rule for settling malpractice claims?
must advise client in writing to seek independent advice and give client reasonable chance to consult with counsel
What if a lawyer obtains a pecuniary interest adverse to the client?
A lawyer must not enter into a business transaction with a client knowingly or acquire an ownership, possessor, security, or money interest that is adverse to a client unless:
(1) fair to client,
(2) terms/lawyer’s role is disclosed in an understandable writing,
(3) client advised in writing to consult outside lawyer, and
(4) consent in a signed writing.
rule on publication rights
a. ABA: cannot require literary/media rights to story based in subst part on info related to rep until matter completely ends
b. CA: no equivalent rule; treated as a pecuniary interest adverse to client and must meet requirements of that rule
financial assistance to clients?
a. Forbidden except
i. Advancing lit expenses and repayment is contingent on outcome of the case
ii. Paying indigent client’s lit expenses
iii. Pro bono – modest gifts of basic living expenses for indigent clients
CA: applies to lit and transactional.
- prohibits “buying” a potential client with promise to pay client’s debts
- rather than pro bono thing above, lawyer may lend money with written promise to repay loan
- may also pay client’s expenses to third party from funds collected for client as a result of the representation.
rules on trial counsel appearing as necessary witness
Cannot appear as both counsel and witness except:
a. Uncontested issue
b. Relates to legal services rendered
c. ABA only: withdrawal would impose substantial hardship on client
d. CA only: consent from client
If opposing counsel is immediate family, is consent required?
yes
rules on sexual relationships with clients
not allowed unless it existed before rep
CA: exception for married and domestic partners
rules on third party paying client’s legal fees
Client must give informed consent
Confidences cannot be shared with third party
No interference from third party
organizational client rules (3)
(1) must clarify who the client is. the lawyer owes a duty to the org, not its constituents. Lawyer must explain this whenever org’s interests are adverse to constituent.
(2) must act in the best interests of entity
(3) you must report federal securities violations to CEO or work your way up to highest members
what is the duty to report re wrongdoing within org?
if lawyer learns that a person associated with the org has acted or will act in a way that violates the duty to the org or law in a way that night be imputed to the org, the lawyer must proceed as reasonably necessary to protect the org’s interest. This ordinarily involves reporting the matter to a higher authority in the org.
in ABA, you may report externally to prevent substantial injury to org - supersedes conf
In CA, you may not report outside of or but you may withdraw if highest authority refuses to act.
What are the requirements for fee agreements under ABA? In CA?
ABA
Must explain how fee is calculated – a lawyer generally must, before or within a reasonable time after beginning the rep, communicate the basis of rate of the fee and the expenses for which the client will be responsible.
o Unless lawyer regularly reps the client and it’s the same rate as in other matters
Fee agreements need not be in writing
CA CA requires written agreement, unless o $1000 or less o Corporate client o Routine services for regular client o Emergency or impractical
What are the requirements for contingent fee agreements? CA distinction?
When are contingent fees prohibited?
Must be in (1) writing and (2) signed by the client, and include:
- how the fee will be calculated
- Expenses to be deducted from recovery
- Whether fee will be calculated before or after expenses are deducted
- What expenses client must pay regardless of outcome
(written statement required after giving outcome and remittance)
CA: requires that
(1) agreement state how the work not covered by the contingency will be paid and
(2) that lawyers fees are negotiable – no set percentages
Contingent fees are prohibited for criminal cases and domestic relationships cases (but not collections - alimony or child support)
What are ABA and CA rules for fee amounts? double billing?
Factors toward reasonableness?
- ABA: fees must be reasonable
o Double fees usually impermissible - CA: fees must not be unconscionably high
o Double billing okay in certain circumstances
Factors that may be considered in whether a fee is reasonable:
(1) time and labor
(2) difficulty of the work
(3) customary fee within the locality
(4) reputation of the attorney
