Professional Responsibility Flashcards
Formation of Client Relationship
A lawyer-client relationship is formed when a person seeks legal services from a lawyer and the lawyer either manifests consent or fails to manifest lack of consent, and knows or should know the client reasonably relies on their services.
Client-Attorney Relationship
When directed by a client to violate an ethical rule, the lawyer must explain why they can’t comply. If the client insists, the lawyer must withdraw.
Allocation of Authority
ABA and CA. The client controls the objectives of representation, and the lawyer controls the legal and tactical means of achieving those objectives.
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. If representing clients with competing interests, an attorney must advise the parties and encourage them to seek independent counsel.
The model rules encourage advisement in writing, that the client be advised of the conflict, and waive their rights related to those conflicts.
In CA, a lawyer must not intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence.
Potential conflicts of interest
Occurs when the lawyer suspects a conflict however representation is not materially limited. ABA doesn’t require informed written consent, CA does.
Conflict of Interest – Current Clients
Exists if the representation is directly adverse to another client, or there is a significant risk that the lawyer’s representation will be materially limited due to personal interests or responsibilities to other clients or third parties, unless:
(1) the lawyer reasonably believes he can provide competent representation;
(2) not prohibited by law;
(3) two party opponents are not represented by the same lawyer; and
(4) each client gives informed consent in writing.
Upon determining a conflict, the lawyer should request to withdraw.
In CA: subtract “reasonably believes.” Both disclosure and consent must be in writing.
Business Transactions with Client
A business transaction between a lawyer and a current client is only permitted if:
(1) all terms are fair and reasonable to the client;
(2) the terms are fully disclosed in writing;
(3) the client is advised to consult with outside counsel and is given a reasonable opportunity to do so; and
(4) the client consents in writing.
Withdrawal
Under ABA rules, a lawyer may seek to withdraw if it can be done without materially harming the client. If it will harm the client, a lawyer may only withdraw if
(1) the client persists in crime or fraud;
(2) lawyer learns previous services were used to perpetuate crime;
(3) lawyer finds a course of action repugnant;
(4) client fails to pay;
(5) representation will lead to a financial burden on the lawyer;
(6) client has made representation unreasonably difficult; and
(7) other good cause.
CA Withdrawal
A lawyer must withdraw if he knows or should know that a client is bringing an action without probable cause, for the purpose of harassing or maliciously injuring a person.
Mandatory Withdrawal
A lawyer must withdraw if:
(1) discharged;
(2) lawyer has a limiting physical or mental condition (ABA - that materially impairs representation. CA - makes representation unreasonably difficult)
(3) the representation will result in a violation of an ethics rule or other law
CA - if the lawyer knows the client is bringing a case without probable cause or for the purpose of harassment. The lawyer must return unspent legal fees, notify the client and return their materials, and cannot hold materials pending payment.
ABA and CA - require the lawyer obtain court approval if they seek withdrawal after the action was filed.
