Professional Responsibility Flashcards
Lawyer’s Duties to Clients
1. Duty of Competence
A lawyer owes a general duty of competence. This requires legal knowledge, skill, thoroughness, and reasonably necessary preparation.
- Duty of Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client. In CA, a lawyer cannot intentionally, repeatedly, recklessly or with gross negligence fail to act with reasonable diligence in representing their client.
- Duty of Communication
A lawyer must keep the client reasonably informed about any significant developments relating to the representation. A lawyer must promptly inform the client of any decision requiring informed consent, consult regarding objectives, and promptly comply with reasonable information requests.
- Duty of Confidentiality
A lawyer has a duty to keep confidential all privileged information that is part of the attorney-client relationship. ABA-a lawyer may disclose confidential information when the client consents. In CA, a lawyer may, but is not required to disclose confidential information to prevent a crime that will likely result in death or substantial bodily injury, and, has a duty to attempt to dissuade client.
- Duty of Loyalty
A lawyer owes his clients a duty of loyalty, which requires they must act in the client’s best interests and avoid conflicts. In CA, writing is required when an attorney represents clients with actual or potential conflicts.
- Duty Regarding Client Property
Client property separates from lawyer, accounting kept for 5 years.
- Catch-All - Duty of Honesty and Integrity
An attorney owes a duty of honesty and integrity to the legal profession this duty includes avoiding violating the rules of professional conduct and engaging in acts of moral turpitude.
Zealous Representation
General Rule
A. Lawyer should abide by a client’s decision concerning the scope of representation.
B. Respect for Rights of Third Persons
Zealous Representation
C. Meritorious Claims and Contentions
A lawyer has to investigate the claims or defenses filed on behalf of a client and cannot file frivolous claims or defenses with the court. *Duty of Competence
Zealous Representation
D. Fairness to Opposing Party
Lawyers must not obstruct another party’s access to evidence.
Zealous Representation
E. Perjured/False Evidence
Attempt to dissuade, withdraw, let client testify, disclose to judge.
Zealous Representation
F. Truthfulness in Statements to Others
Lawyers must not make false statements of fact or law to a third person or fail to disclose a material fact.
Zealous Representation
G. Candor Toward Tribunal
A lawyer must not knowingly offer false evidence.
H. Illegal Acts
I. Undue Influence
J. Client Commits Fraud on Person/Trial During Representation
K. Threating Criminal/Administrative/Disciplinary Charges
L. Transactions with Persons Other Than Clients
M. Trial Conduct
N. Publicity
Conflicts of Interests
1. Actual
Potential - occurs when the lawyers suspect a conflict however representation is not materially limited. ABA Model Rules do not require informed written consent; however, CA rules do.
2. Waiver
- Types of Conflict
A. Client v. Attorney
A lawyer must not represent a client if the representation of that client may be materially limited by the lawyer’s own interests unless the lawyer reasonably believes there will be no adverse effect, and the client consents after consultation.
Conflict of Interest
B. Client v. Third-Party
A concurrent conflict of interests exists if there is a significant risk that the representation of one or more clients will be materially limited by the lawyers. Responsibilities to another client, a former client, a third person, or by a lawyer’s personal interest.
Conflicts of Interest
C. Client v. Client
A concurrent conflict of interest exists if the representation of one client is directly adverse to another client.
- Former Client
- Current Client
Fees
Fee Agreements
A lawyer shall not charge or collect an unreasonable fee (in cA unconscionable). Written fee agreements are advisable under the ABA rules and mandatory in CA unless the fee is less than $1k or less, the work is routine, the client is a corporation, or the client waives the requirements in writing. A lawyer shall not charge a contingency fee in a divorce, alimony, or criminal case.
Reasonable Fee
Under ABA Rules, fee must be reasonable based on such factors of time, difficulty of the case, and expertise of the lawyer, degree of specialty required, preclusion of other work, amount of fee, the relationship with the client, and the results obtained.
Contingency Fee Agreement
Must be in writing and explained. The writing must explain the method of which the fee is calculated, including percentages payable upon settlement, what expenses will be deducted from the recovery, and whether the expenses are to be deducted before or after the fee determination.
Third-Party Statements
Allowing a third party to pay for legal fee is permissible, as long as such agreement prohibits the third party from controlling the course of the representation. The third-party has no privilege to be apprised of the case or of any confidential communication. Here, the client must give informed consent. In CA, this consent must be in writing.
Advances/Loans
The advance is simply costs and fees, it is acceptable in all jx. In a majority, repayment of such can be contingent on the outcome. In minority, the client must repay such, regardless of outcome.
If a Loan
It is illegal in almost all states. However, in CA, provided the loan is fair, it occurs after employment has begun, and it is promised in writing that such will be repaid, it is legal.
Referrals
ABA a lawyer may not give anything of value to a person for recommending the lawyer’s services, but they may engage in mutual referral of clients. In CA, referral fees can be paid if:
- Consents in writing
- The fee does not increase cost to client; and
- If not unconscionable
Sharing Fees with Non-Lawyers
Fees may not be shared, and a partnership may be made with non-lawyers if any of their activities include the practice of law.
Solicitation
A lawyer or his agent cannot solicit a client by in-person, live telephone, or real time electronic contract when the significant motive is pecuniary gain.
Division of Fees Between Two or More Lawyers
Fees can be shared between lawyers not in the same firm if:
1. The division is proportionate to the service provided.
2. The client consents in writing.
3. Total fees are reasonable.
In CA, in addition:
1. The fees cannot be increased because of the division; and
2. The fees aren’t unconscionable.
Fee Disputes
- CA requires
2. ABA encourages
Advertising/Solicitation
- No false/misleading communication
- No live or in person soliciting
- CA presumes invalid if:
- Guaranty, warranties, results
- Testimonial without disclaimer
Termination of Relationship
1. Mandatory
A lawyer must withdraw if:
- Discharged
- Lawyer has a limiting physical or mental condition (ABA-Materially impairs representation or in CA makes representation unreasonably difficult.
- The representation will result in violation of an ethics rule or other law.
Permissive
A lawyer may withdraw from representation if:
1. Without material adverse effect
2. Lawyer reasonably believes is fraudulent or criminal
3. Perpetrate a crime or fraud
4. Action that lawyer considers repugnant
5. Client fails substantially to fulfill an obligation
6. Unreasonable financial burden
7. Good Cause
In CA, be supported by good faith, conduct that makes it unreasonably difficult, or unable to work co-counsel.
Procedural Requirements
- Reasonable Notice
- Return Files
- Refund unearned fees promptly
- Attorney must continue to honor client confidentiality
Lawyer’s Duties to Clients
- Duty of Competence
- Duty of Diligence
- Duty of Communication
- Duty of Confidentiality
- Duty of Loyalty
- Duty Regarding Client Property
Conflicts of Interests
- Actual/Potential
- Waiver?
- Types of Conflict
A. Client v. Attorney
B. Client v. Third Party
C. Client v. Client - Former Client
- Current Client
Competence
Malpractice
- Duty
- Breach
- Actual Cause
- Proximate Cause
- Damages
* Lawsuit w/in a lawsuit
Fees
- Amount of Fee
- Division of Fees Between Two or More Lawyers
- Fee Disputes
Client Perjury - Model Rules
- Attempt to Dissuade
- Attempt to Withdraw
- Let Client Testify/Avoid Asking Sensitive Subjects
- Disclose to Judge/Client Testify in Narrative Form (CA)
Termination of Relationship
- Mandatory
- Permissive
- Procedural Requirements
