professional responsibility Flashcards
Duties owed to clients
confidentiality, loyalty, financial responsibilities, and competence
duties to entities other than your clients
candor, fairness, dignity
what is the general rule of the duty of confidentiality
don’t reveal anything related to the representation of a client, regardless of whether client requested it to be confidential. applies regardless of source to anything not generally known
what is the duty of confidentiality regarding electronic security?
use reasonable electronic security to prevent inadvertent access to or disclosure of client confidences
when does the duty of confidentiality attach?
can attach before a lawyer-client relationship is formed, and even if none is formed.
when does the duty of confidentiality end?
through the client’s lifetime
when does AC privilege end?
ABA- through client’s lifetime; CA- with probate
What are the exceptions to the duty of confidentiality?
consent, defending yourself (malpractice, disciplinary actions, refuses to pay), preventing death or substantial bodily harm (ABA), preventing criminal acts (CA), fraud or crimes causing financial injury (not in CA), if compelled by final court order
what must you first due before disclosing confidential info to prevent death/substantial bodily harm/ crim acts
first, make a good faith effort to persuade client not to commit the act. IN CA, inform the client of your decision
when do you have a conflict of interest
if your representation is directly adverse to another client, 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
exceptions to imputed disqualification rules
uniquely personal conflicts not imputed
when can an ethical wall make imputed conflicts okay
conflict is based on situations involving the disqualified lawyer’s prior representation or employment
former client must be given notice
in CA, disqualified lawyer must not have substantially participated in the same or substantially related matter while at her prior firm
most conflicts may be tolerated if a case by case, factual analysis establishes that:
1) you reasonably believe you can represent everyone effectively despite the conflict 2) you inform each affected client. Note: if your duty of confidentiality prevents you from fully disclosing info the client needs to understand the conflict, consent not possible 3) client consents CONFIRMED IN WRITING
what does ca require for client consent to conflict of interest?
client writing for all consent (aka client signs), AND disclosures for any sketchy relationship
if you were a government lawyer who worked personally and substantially on a matter, can you work on that same matter in private practice?
need government’s consent
what client rights are you unable to limit
right to report for professional misconduct, or right to cooperate in a criminal investigation
under what circumstances can you limit your malpractice liability
ABA: client must be independently represented; CA: NO malpractice limits
when may you enter a business transaction w/ a client
terms are fair, disclosed in understandable writing, client advised to consult an outside lawyer, client provides consent in a signed writing
rules around publication rights contracts
ABA: you can’t buy rights to story before representation has ended; CA: discouraged, but allowed if judge is satisfied client clearly understands consent
what if the opposing party’s lawyer is a member of your immediate fam?
all client consent
can a third party pay for your services for a client?
only with informed client consent, confidences cannot be shared
what must be included in a non-contingent fee agreement, and how must it be made?
must include how fee is calculated, what services are covered, and lawyer and client’s duties. CA also requires: agreement be in writing unless less than $1000, corporate client, routine services
what must be included in a contingent fee case agreement?
in writing, signed by client. must include: your percent, what expenses will be deducted from recovery, whether percent taken before or after expenses, what expenses your client must pay; In CA, also: how work not covered by fee will be paid, and that lawyers fees are negotiable
In CA, if a client disputes your fee:
a lawyer is required to participate in fee arbitration
