Professional Responsibility Flashcards
Conflict of Interest: Duty of Loyalty
A lawyer owes her client a duty of loyalty and must avoid conflicts of interest. A conflict exists when there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or by the lawyer’s duties to another.
Conflict of Interest: Current Clients (ABA)
% out of exams tested: 47.5%
Under the ABA Rules, a lawyer may undertake a representation despite the concurrent conflict if the lawyer (i) reasonably believes that she can competently and diligently represent each affected client despite the conflict; and (ii) each affected client gives informed consent, confirmed in writing.
Also, the representation must not (i) be prohibited by law or (ii) involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case pending before a tribunal.
Conflict of Interest: Current Client (CA)
% out of exams tested: 47.5%
The California Rule for conflicts of interest is the same, except that it requires “informed written consent.” Additionally, in California, if a lawyer has a personal, professional, financial, or legal relationship with a party or witness in the client’s matter, the lawyer must provide written disclosure to the client even if there is no significant risk that the relationship would materially limit the representation.
Conflict of Interest: Former Clients
% out of exams tested: 17.5%
A lawyer who has formerly represented a client in a matter must not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
Conflict of Interest:
Former Government Employees
% out of exams tested: 5%
A lawyer must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed consent, confirmed in writing. A “matter” must involve specific facts and parties.
Duty of Competence
% out of exams test: 55%
Issue: Whether [Lawyer] breached his duty of competence.
Rules: In representing a client, a lawyer must act competently. [CA] [In California, a lawyer is subject to discipline only if he intentionally, recklessly, with gross negligence, or repeatedly fails to perform legal services with competence.]
Amount of Lawyer’s Fees
% out of exams tested: 17.5%
The ABA Rules state that an attorney’s fee must be reasonable. The California Rules prohibit “unconscionable” fees.
Many factors are considered in determining the reasonableness of a fee, including: (i) the time and labor required; (ii) the novelty and difficulty of the questions involved; (iii) the skill required to perform the legal service; and (iv) the experience, ability, and reputation of the attorney.
Duty of Confidentiality (ABA)
A lawyer must not reveal information relating to the representation of a client, even after termination of the relationship. The relevant exception to this duty under ABA Rules is that a lawyer may disclose information relating to the representation of a client to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services to commit the crime or fraud. California does not recognize an exception for financial loss.
Duty of Confidentiality
% out of exams tested: 47.5%
Former Client: A lawyer must not reveal a former client’s information unless permitted by the RPC. A lawyer who has formerly represented a client in a matter may not thereafter use information relating to the representation to the disadvantage of the former client, except as permitted or required by the RPC, or when the information has become generally known.
Solicitation
% out of exams tested: 12.5%
A solicitation is a communication that is initiated by the lawyer and directed to a person known to need legal services in a matter, and that offers to provide legal services in that matter. A lawyer generally must not use personal contacts to solicit clients when a significant motive for doing so is the lawyer’s pecuniary gain. A lawyer is prohibited from using an agent to do that which the lawyer must not do.
