professional responsibility Flashcards
Duties to clients
confidentiality
loyalty
financial responsibility
competence
duties to courts, adversaries, legal profession, and the public
candor/truthfulness
fairness
dignity/decorum
mnemonic for duties of attorney
clients love fierce counsel, courts feel differently
duty of confidentiality
do not reveal any information protected by attorney-client privilege, gained through the professional relationship that would harm or embarrass your client, or that your client has requested to be kept confidential. you must take reasonable steps to prevent inadvertent disclosure. the duty covers information from a consult and continues after client dies
exceptions to duty of confidentiality
client consent,
defending yourself against malpractice, disciplinary proceeding, or disclosure necessary when client refuses to pay your fee and you have to bring suit - but only allowed to reveal info necessary to establish claim or defense
running your office - can reveal info that you reasonably believe will be confidential for programs necessary for data processing and case management
preventing harm
compelled by final order by court of law
when can you reveal confidential information to prevent harm
must reveal client’s intention to commit crime that is reasonably certain to result in death or substantial injury to another’s body, finances, or property and reveal the information necessary to prevent it.
if no crime is involved, may reveal confidences to prevent death or substantial bodily harm
but, first must if feasible advise client of possible legal consequences, urge him not to commit crime, and warn him that you must reveal intention to commit crime if not abandoned
concurrent conflict of interest
if interest of another client, yourself, or a third party creates a significant risk of materially limiting your representation, or your representation of one client is directly adverse to another
imputed disqualification
lawyers associated together in a firm share each other’s conflicts. conflicts are imputed when you know or should reasonably know of a colleague’s conflict, so failing to check for conflicts can be a violation
client consent to conflicts
you reasonably believe you can represent everyone competently and diligently despite a concurrent conflict
you consult with each affected client. if your duty of confidentiality prevents you from full disclosure, consent may not be possible.
the client consents, confirmed in writing (email memorializing consent is sufficient)
does not work for representation that is directly adverse to one another
when is representation prohibited
if prohibited by law or if the representation involves assertion of a claim by one client against another client that you represent n the same case pending before a tribunal
opposite sides in same proceedinig
you cannot represent opposing parties in the same litigation before a tribunal.
opposing current client in another matter
representation adverse to a current client in a different matter is allowed if all clients consent. so if your firm does transactional real estate for Texaco, you could take a labor claim against Texaco if all parties consent
Two clients with inconsistent position
positions in litigation generally don’t create conflict, but if either client would be disadvantaged, need consent.
so can argue for an against an act in two different appeals
representing multiple clients in the same matter
this raises significant risks that your service for one client may become materially limited as a result of other’s interest. these potential conflicts generally require disclosure and consent.
however, have to withdraw from representation if one client gives you information that would make his interests directly adverse to the other (representing a person and their insurance provider in malpractice action and the person informs you that his insurance did not cover his medical practices against the plaintiff).
new clients in matters related to former clients
if confidential info from a former client might be relevant to a new client’s matter, you may be violating continuing duties of confidentiality and loyalty to former client.
Cannot take on new client with interests materially adverse to former client without consent of both. use of non-public, confidential information against a former client requires reasonable consent
former government lawyers that move to public practice
if you were a government lawyer who worked personally and substantially on a matter, you cannot work on that same matter in private practice without government consent. matter = specific dispute between specific parties over specific issues
imputed disqualification for former government lawyers
new firm can work on case despite imputed conflicts by government lawyer if:
former government lawyer is screened off
former govt lawyer does not share any part of fee in the matter (though salaries or partnership shares are okay)
former government employer is informed
representation by third party neutrals who worked on case
former judges, clerks, arbitrators, and other third party neutrals who worked on a matter will require consent of all parties to judicial proceeding
gifts to the lawyer
must not solicit substantial gift from client or draft legal instrument for client who is not your close relative if it provides a substantial gift to you or your relative
limiting liability
you cannot limit client’s right to report you for professional misconduct or cooperate in an investigation. You cannot limit your malpractice liability when you enter into a relationship with your client, unless you are an employee of the client and the client is independently represented in making the agreement
publication rights contracts
cannot purchase or accept as payment the rights to publish a client’s story before your representation has ended
use of information
use of confidential information to a client’s disadvantage violates the duties of loyalty and confidentiality unless the client consents
financial assistance to client
cannot give client money unless advancing court costs and fees in contingent fee arrangement and court costs and litigation expenses for an indigent client
business transactions with client
First Discuss Over Coffee
can enter into deals with clients if: the terms are Fair to the client, Disclosed in understandable writing, the client is advised to seek Outside counsel, and your client provides Consent ini writing
may accept stock in company as payment for services if fair and reasonable under circumstances known to lawyer
board service as a lawyer
service on the board of directors of a non-profit legal services organization is allowed. no bar to sitting on the board of a corporate client, but is discouraged because it may compromise loyalty and confidentiality.
if attorney has fiduciary duty to corporation due to membership on board, cannot represent an officer in an embezzlement investigation.
proprietary interests in litgation
should not have financial interest in subject of your work, but contingency fees or liens on your client’s property to secure your fees are okay
trial counsel as necessary wtness
rules bar you from appearing in the same trial as counsel and as witness unless your testimony is uncontested, about your legal services rendered, or if your distinctive value to the case means withdrawal would impose substantial hardship on the client. if testimony would prejudice client, consent is required.
not imputed to firm
close relationship with adversary’s lawyer
cannot oppose party represented by your relative without client consent. includes immediate family (parent, sibling, child, spouse)
not imputed to firm
payment for services from third party
payment only permitted with informed client consent. confidences cannot be shared and you must retain independence
organizational clients
lawyer must act in best interests of the entity
federal laws governing securities lawyers
if you are in house counsel and the COO violates securities laws, you must report to CEO or Chief Legal Counsel. f they do not respond, you must go to the highest authority in the company. f they do nothing and you reasonably believe it is necessary to prevent fraud, perjury, or substantial injury to the organization or investors, or to rectify financial injury from a violation, then you may disclose confidential info to the SEC w/o client consent
Virginia rules on non-public entities
in representing a non-public company, you must minimize disruption and risk of revealing info to outsiders. if organization’s highest authority insists on actions likely to result in substantial injury to the organization, you may resign or decline to represent it in that matter
if the organization intends to commit a crime reasonably certain to result in substantial financial injury to another, you must reveal it
non-contingent fees
must explain amount, basis, or rate of your fee within reasonable time of taking a client, preferably in writing
contingent fees
fee agreements must be written, signed by client, and contain:
- your percentage
- what expenses will be deducted from the recovery
- whether your percent is taken before or after expenses
at end of contingent fee matter, must give client written statement of outcome, how it was determined, and remittance made
limits on contingent fees
cannot agree to or collect contingent fees in any criminal case and most domestic relations case. limited exception to domestic bar for fair arrangements when adequate counsel would not otherwise be available, no prospects for reconciliation, any children are older, and fee is to collect child support, alimony, or determined property award
cannot have a bonus for winning a criminal case. if
if contingent fee is not in client’s best interest, should explain other fee arrangements and let client make an informed choice
termination of representation before contingency/judgment
if the client wins, the attorney can recover the reasonable value of his or her work before discharge
requirement for fees
attorney fees must be reasonable, taking into account labor, novelty, difficulty, skill and timing required, result obtained, the experience of and other demands on the attorney, fee arrangement, etc.
safeguarding client property
you have a duty to safeguard your client’s property by promptly storing it in a safe place, such as a safe deposit box
client trust account
put money held for a client or 3d party in a trust account in a financial institution that is approved by the VA Bar or by your client in writing. include money received. on your client’s behalf and his advances to you for costs, expenses, and unearned fees. Retainers are earned when paid.
Do not borrow or commingle funds w/ your personal money. you may deposit your money for bank service charges or to maintain a minimum balance, but once you earn that money back, promptly withdraw your deposited money
Fee splitting
it is generally okay to split fees w/ lawyers in your firm. you may split fees with lawyers outside your firm only if the total fee is reasonable, you disclose division w/ the client before rendering services, and the client consents, preferably n writing. fee split does not need to be proportional with work done.
fee splitting w/ non lawyers is not allowed
exceptions to fee splitting for non lawyers
- death benefits paid to deceased lawyer’s estate or heirs for the work
- salaries and benefits paid to nonlawyers
payment for referrals
not allowed, but may pay usual charges of a qualified lawyer referral service, expenses for advertising, and give nominal gifts of gratitude that are not intended or expected to be compensation
partnership with nonlawyers
partnerships with non-lawyers in providing legal services is prohibited for any practicing lawyer. you can associate with a legal services organization or insurance plan but cannot allow it to interfere with your independent judgment in how to handle a matter
Duty of competence
you have duty to render competent service to your client, meaning using legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. if you don’t know the. law, don’t take the work unless you can learn. it without undue expense or delay, or you work with a lawyer competent in the area
duty of dilligence
duty to diligently, promptly, and zealously pursue your case to completion
duty to communicate
duty to keep client informed, answer client communications, and convey settlement offers. if a settlement offer is made to joint clients, consult with all and be sure they agree on division of settlement before accepting
accepting representation
generally free to accept or reject a case. no rules mandate you take a case, though you should volunteer 2% of your professional time annually to pro bono. You must reject a case if taking it would violate a law or ethical rule. typical problems are if you are not in the physical or mental shape to take the case
decisions made by clients v. decisions made by attorney
client makes decisions about substantive rights (testifying in criminal case, accepting plea or settlement)
attorney makes decisions about legal tactics
illegal conduct by client
may explain why a course of conduct would be illegal, but cannot assist client in conduct you know is criminal or advise how to act illegally and get away with it. if your client insists on unethical assistance, must withdraw
mandatory withdrawal
must withdraw from pending case if fired by client or if continuing would violate a law or ethical rule (if client is using your services to commit crime or fraud)
permissive withdrawal
may withdraw if you can do so without material adverse effect to your client. recognized reasons if your client persists in an illegal, unjust, imprudent, or repugnant course of action or fails to fulfill an obligation to you after reasonable warning, or if rep will unreasonably financially burden you, is unreasonably difficult, or if client has used your services for crime or fraud, or other good cause
procedures to withdraw
if you are counsel of record in court, must get leave of court.
must provide timely notice to client, and in a reasonable time return any unspent fees and expense advances and all of the client’s property and materials, including work product. CANNOT hold client materials hostage to get paid
duty of candor
cannot engage in conduct involving dishonesty, fraud, or misrepresentation
duty to present facts and evidence truthfully
you must not make false statement of material fact or offer evidence you know is false to a tribunal or fail to correct any false evidence you have offered. fi you only reasonably believe evidence is false, you may refuse instruction to use it
client perjury
must not knowingly facilitate perjury.
in civil case, must refuse to call witness, including client, if you know he intends to perjure himself. however, criminal defendants have a constitutional right to testify on their own behalf. if he intends to lie on stand, take reasonable remedial measures
reasonable remedial measures
counsel your client to testify truthfully or not take the stand. if that fails, you should try to withdraw. if that fails (court won’t let you), tell the judge to avoid assisting in a criminal act.
disclosing fraud of witnesses
if you have information clearly establishing a non-client has perpetrated a fraud on a tribunal where you are appearing, you must promptly reveal it to the tribunal, even if it requires disclosing confidential information
counseling witnesses
you must not counsel or assist a witness to testify falsely or become unavailable.
paying experts
you may pay basic expenses of witness and reasonable fees for expert witnesses as long as payment is not contingent on the content of the testimony
reasonable belief that testimony is false
if you reasonably believe but do not know the testimony is false, may permit testimony, do not need to report.
duty to produce evidence
you may not obstruct access to evidence or cause potential evidence to be altered or concealed, regardless of duty of loyalty.
interference with evidence
if client tells you where gun is and your investigator finds the weapon but do not touch it, you do not have to tell authorities, court, or opposing counsel about it.
however, if your investigator actually retrieves the gun and examines it, the investigator could be compelled to produce it for the authorities and tell where it was found as you can be compelled to testify as to original location or condition of evidence you moved or altered. however, cannot reveal source of info about gun’s location
ex parte proceedings
communications with the judge without your adversary present. ethical duties of candor and fairness to adversary require you to volunteer material information, trumping normal presumption that you not reveal facts harmful to your client. notice and copies must be given promptly to other parties
duty to state the law truthfully
knowingly making a false statement of law is subject to discipline. be candid about the law and cite to adverse authority if controlling and on point. you may make non-frivolous, good faith arguments for modification of existing law
duty to uphold law
if continued representation would require you to commit/assist in crime, must withdraw. if client persists in criminal acts but you are not assisting, you May withdraw.
if client is going to commit a crime that would cause death or substantial harm to another’s person, finances, or property and you cannot talk him out of it, must reveal information necessary
rectifying fraud on tribunal
if you discover you have offered false evidence to a tribunal, you must take reasonable remedial measures. try to correct (counsel witness to recant), try to withdraw, or as last resort, disclose what is necessary to tribunal, even if confidential or privileged
fraud on third party
if your client has perpetrated fraud on third party related to and during your representation, may reveal information necessary to establish and remedy fraud
duty to preserve decorum and impartiality of tribunal
do not state or imply ability to influence improperly a tribunal, legislative body, or public official
do not make gifts or loans of value to court personnel if it could appear to be for influence
if you hold public office do not use position to obtain advantage for you or client if not in public interest
improper influence on juries
cannot try to influence anyone improperly. before and during trial cannot directly or indirectly communicate with prospective or impaneled jurors or their families. after trial, can communicate with willing jurors
duty to preserve decorum - trickery
no chicanery - trickery, referring to inadmissible material or matters unsupported by evidence, no asserting personal knowledge of facts at issue before jury
duty to preserve decorum - treatment of others
refrain from abusive or obstreperous conduct. lawyer must stand firm against abuse by judge but should avoid reciprocation.
preserve tribunal’s dignity - do not make comments on qualifications or integrity of judge or officer with reckless disregard for accuracy
duty to expedite cases
affirmative duty to expedite cases
duty to follow valid procedural rules and court orders unless you are making good faith challenge to validity. do not abuse or obstruct discovery
ethical duties of judges
judges, including retired and substitute judges, are expected to maintain high standards of integrity and independence to promote public confidence and impartiality
judicial conduct in court
in court, judges should avoid appearance of bias or prejudice, be fair and efficient, avoid ex parte communications, and avoid public statements about case
when judges should disqualify themselves
judges should disqualify themselves if they have personal or financial interest in case or personal knowledge or prior involvement with it
judge’s duties in outside activities
judges must report income from all sources, usually not accept substantial gifts or loans, avoid public orgs that practice invidious or illegal discrimination and political causes (although educational and charitable work is allowed) and not misuse judicial prestige to advance private interests
duties for active judges
must not serve as private judge, arbitrator or mediator, practice law, or run for office
duty of fairness
have duty to behave honestly in all dealings, both in and out of legal practice. do not commit deception or deliberately wrongful act that reflects badly on your honesty, trustworthiness, or fitness as a lawyer
dealing fairly with others
do not threaten disciplinary, administrative, or criminal proceedings as leverage in a civil dispute. do not act or take position merely to harass or maliciously injure another.
improperly received information
if you receive document or electronic info you know or should know is privileged and was inadvertently sent, you must immediately terminate review or use of it, promptly notify sender, and abide by their instructions to return or destroy it
communication with adversaries and third parties
must not lie to people or mislead them as to your interests. must not violate legal rights of a person to obtain evidence or use means with no purpose but to delay, burden, or embarrass them
dealing with represented people
if you know a person is represented by counsel on subject of your inquiry, must have consent of his counsel to contact him outside of formal discovery. exceptions are if you are authorized by law or if the person is asking for a second legal opinion.
additional duties of prosecutors
prosecutors must have probable cause to prosecute cases and must timely disclose evidence they know is favorable to the defense
dealing with the press
you have duty not to interfere w/ defendant’s right to fair trial. must avoid out of court statements that you reasonably should know have a substantial likelihood of interfering with fairness of the trial
advertising
advertising cannot be false or misleading. do not mislead or omit material information, do not make unsubstantiated comparisons with other lawyers’ services or fees or report past results without details or disclaimers to prevent unjustified expectations. you may identify specialties or certifications as long as your statements are not false or misleading
solicitation
Virginia permits face to face, telephonic, and real-time electronic contacts. however, you cannot solicit anyone who has let you know they do not want to be solicited or harass them with repeated communications if they don’t respond. your solicitation cannot harass, use undue influence or duress, or unwarranted promises of benefits
consider totality of circumstances including previous relationship, their physical and mental state, and your conduct
advertising material
solicitation seeking professional employment on a particular matter must be conspicuously labeled as advertising material at the beginning of any written, recorded, or electronic communication. general announcements and responses to specific requests need not be labeled
sanctions
most common sanctions for violating rules are disbarment, suspension, censure by courts or bars. may be ordered to limit your practice, pay fines/restitution to victims, enter rehab, take CLE or even retake the bar exam. Virginia sanctions attorneys, not firms, though some rules restrict firm behavior. may also be subject to state and federal court sanctions and civil and criminal liability
duty to report misconduct
you must report to appropriate authority any other lawyer’s or judge’s violation of the rules if it raises a substantial question as to that person’s honesty, trustworthiness, or fitness as a lawyer.
exceptions - information is privileged because violating attorney is your client or you discovered it when helping attorney in approved substance abuse program
what do you do if a client tells you about an attorney’s misconduct
if it involves confidential client information, you must have client’s consent before reporting. if you discovered violation when acting as mediator, parties must consent to report
self-reporting
if you are disciplined in another jurisdiction, convicted of a felony, or convicted of an attempt or crime of theft, bribery, extortion, fraud, or perjury, you must report it
unauthorized practice of law
unauthorized or unlicensed practice of law is forbidden to protect public from incompetence. you can be disciplined for assisting unauthorized practice of law by any person who is not n good standing in a bar
multijurisdictional practice
if you are from out-of-state but licensed in good standing in another state or foreign country and not disbarred or suspended, may temporarily and occasionally practice in VA if: you associate with locally admitted lawyer who actively participates in matter or your services relate to ADR or the matter is reasonably related to your home state practice or is governed by international law
must notify client in writing that you are not licensed to practice in VA
in house counsel
in house counsel who work only for their company may apply for corporate counsel certificate or register with the Bar to work in VA
noncompetes
law firms cannot restrict your rights after termination. noncompetes are impermissible. restrictions on your practice as part of a settlement must be approved by tribunal or government entity
leaving your firm
if you leave your firm or it dissolves, clients must be given specific notice, preferably in a joint statement telling them they are allowed to stay with firm, seek new counsel, or continue to have you as lawyer
duties of subordinate lawyers
if you are under control or supervision of another attorney who ratifies or orders you to act in violation of an ethical rule and the violation is a clear violation, you are subject to discipline. if the ethical rule is a debatable problem, your supervisor is solely responsible
supervisor’s ethical responsibility
if ratified unethical action or knew of conduct and failed to take remedial measures, he is in violation of ethical rules
supervisors of lawyers and nonlawyers must make reasonable efforts to ensure that conduct of all firm employees and outsources workers comport with professional obligations of a lawyer. you are responsible for violations of nonlawyers if you failed to take remedial action when you knew or should have known of the conduct
