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FAVE TESTING AREAS > Professional Responsibility > Flashcards

Professional Responsibility Flashcards

1
Q

Duty of Loyalty

A

A lawyer has a duty of loyalty to his client that requires L to place the interests of his client above all other interests.

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2
Q

Duty to Avoid Conflicts of Interest

A

A lawyer must avoid all conflicts of interest. This includes actual (current) conflicts and potential (future) conflicts.

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3
Q

Conflict of interest Exception

A

A lawyer may not represent a client where there is a conflict of interest.

Except:
* L may represent if reasonable belief L will be able to provide competent and diligent representation to each affected client
* Not prohibited by law
* Not asserting a claim against each other.
* Each C gives informed consent in writing

CA: Same exception + Disclosure of L’s relationship to any party

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4
Q

Prospective client and duties to a prospective client

A

Rule: A person who consults with L about the possibility of forming a client-lawyer relationship is a prospective client.

Duties. to prospective client
* Confidentiality
* No Conflict of Interest

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4
Q

Prospective client and duties to a prospective client

A

Rule: A person who consults with L about the possibility of forming a client-lawyer relationship is a prospective client.

Duties. to prospective client
* Confidentiality
* No Conflict of Interest

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5
Q

ABA and CA:
Duty of Diligence

A

ABA: L shall act with reasonable diligence and promptness in representing a client.

CA: L shall not intentionally/recklessly/repeatedly fail to act with reasonable diligence in representing a client.

CA Reasonable means
1. L acts with commitment + dedication to C’s interests
2. L does not neglect, disregard or unduly delay a legal matter entrusted to a lawyer (Don’t do what J and D did)

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6
Q

ABA and CA:
Duty of Diligence

A

ABA: L shall act with reasonable diligence and promptness in representing a client.

CA: L shall not intentionally/recklessly/repeatedly fail to act with reasonable diligence in representing a client.

CA Reasonable means
1. L acts with commitment + dedication to C’s interests
2. L does not neglect, disregard or unduly delay a legal matter entrusted to a lawyer (Don’t do what J and D did)

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7
Q

When does a conflict of interest occur?

A

A conflict of interest occurs when
* The representation of one client will be directly adverse to another client OR
* There is a significant risk of materially limiting the representation due to L personal interest, interest of a current or former client, interests of a third party

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8
Q

Sexual relations with Client

A

L shall not have sexual relations with C.

Except: Consensual relationship existed before the L/C relationship began

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9
Q

ABA + CA:
Business Transactions with Client

A

L shall not enter into a business transaction with a client or knowingly acquire an interest that is adverse to the client.

Except
1. Fair/reasonable
2. Transaction terms disclosed in writing (CA: L role in transaction also disclosed in writing)
3. Client is advised to seek outside counsel (CA: C is actually represented by independent L)
4. Client gives informed consent in writing of the essential terms

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10
Q

ABA + CA:
Lawyer solicits/receives gifts from Client

A

Lawyer shall not
* Solicit a substantial gift from client
* Draft a legal document for a client that contains terms that gives L, or a person related to L, a substantial gift

Exception: L may do so if L/Person related is actually related to the client. (I can solicit substantial gift from Tito)

CA additional exception:
L may accept gift if independent counsel advised C AND certificate of independent review is provided OR
The gift is fair and no undue influence

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11
Q

ABA + CA:
L gives Client Financial assistance/Loans

A

Can create COI.

ABA Only: No financial assistance in connection with litigation.

Exception:
- Contingency cases L may advance court costs
- Indigent Client: L may advance court costs

CA: Can lend for ANY purpose, if promise in writing to repay

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11
Q

Proprietary Interest

A

L shall not acquire a properietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client

Except
1. Lien to secure L’s fees or expenses
2. Contract with client for a reasonable contingency in a civil case

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12
Q

Compensation from 3rd Party

A

COI can exist. No compensation from third parties unless

  1. Informed consent (CA informed written consent)
  2. No interference with L independent professional judgement
  3. Information relating to representation remains confidential
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13
Q

Lawyer Seeks to obtain Publication rights to Clients Story

A

L shall not make or negotiate an agreement giving L the literary or media rights to portrayal or account based in substantial part on information relating to the representation.

Except: L can do so once the representation of C is over.

Don’t cut a deal to shoot “Inventing Anna” until representation is done!

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14
Q

ABA + CA:
L attempts to limit Malpractice Liability

A

L shall not make an agreement limit liability for malpractice unless client is independently represented in making the agreement.

CA does NOT have an exception!!! Can’t do it at all in CA (unfortunately)

15
Q

COI: New client represents a COI to former client

A

L shall not represent a new client in the same or substantially related matter in which the new clients interests will be materially adverse to the interests of a former client.

Except: Former client gives informed consent, in writing

16
Q

Lawyer represents new client to the detriment of a former client of a former firm!

A

L shall not represent a new C in the same or substantially related matter in which L’s former firm represented a former client if

  1. The new clients interests are materially adverse to the former client of the former firm and
  2. L acquired confidential information regarding the matter

Exception: Former client of former firm gives informed consent, in writing

17
Q

Imputation of COI

A

A conflict of one attorney in a firm is imputed to all other attorneys in the firm, which prevents the other attorneys from representing the client.

Except
* . The original conflict is based on a personal interest and does not represent a significant risk of materially limiting the representaiton of the other firm attorneys or

  • . The conflict is based on a firmer client at a prior firm and
  • (a) timely screened
  • (b)former client provided with written notice and certifications of cimpliance with the screening procedures

CA additional Requirement: Prohibited L did not substantially participate in the same or substantially related matter

18
Q

ABA ONLY
Duty of Confidentiality

A

Lawyer shall not reveal information relating to the representation of a client.

Exceptions

  1. Informed Consent
  2. Impliedly Authorized
  3. Reasonably believes necessary to prevent Death or SBH
  4. To prevent or mitigate Crime or Fraud that is reasonably certain to result in substantial injury and used L services to do so
  5. Comply with court order
  6. Secure Legal Advice
  7. Establish claim or Defense

Cats and Dogs Can Cuddle And Dream

19
Q

When L represents corporation:
When must lawyer report misconduct to a higher authority?

A

If Lawyer knows (CA Reasonably knows) that an officer, employee, or other person has
* intent ot engaged in conduct imputable to the organization
* Is likely to result in substantial injury to the organization

Then L must report up by referring the matter to a higher authority in the organization

Exception: If L reasonably believes it is not in the best interest of the organization to do so

20
Q

L represents Corporation:

What should L do if higher authority fails to act after L reports misconduct?

A

If highest authority fails to act, then
* ABA: L may report out and reveal information, even if confidential, if necessary to prevent injury to the organization
* CA: L may not report out if it will violate duty of confidentiality. L should urge reconsideration, resign, or withdraw. L may only report out to prevent drath or SBH.

21
Q

ABA + CA:
Attorney Client Privilege

A

Protects confidential communication during A/C relationship.

Privilege belongs only to C.

ABA: Applies indefinitely
CA: Applies until C has died and estate is fully distributed

Exceptions:
* Crime/fraud
* Both parties represented by same Lawyer
* C suing for malpractice
* Waiver

22
Q

ABA + CA:
Attorney Client Privilege

A

Protects confidential communication during A/C relationship.

Privilege belongs only to C.

ABA: Applies indefinitely
CA: Applies until C has died and estate is fully distributed

Exceptions:
* Crime/fraud
* Both parties represented by same Lawyer
* C suing for malpractice
* Waiver

23
Q

Duty to Safeguard Information

A

L shall make reasonable efforts to prevent inadvertent or unauthorized disclosure of of information relating to representation of a client.

24
Q

CA Duty of Confidentiality

A

L shall not reveal information relating to the representation of a client.

Except: L may do so if
* C gives informed consent
* Necessary to prevent death or SBH but only if 1. L makes good faith effort to dissuade, 2. Informs C of L’s ability to reveal the info, and 3. Only reveal as much info as necessary

25
Q

ABA Duty of Competence

A

L shall represent C with the legal knowledge, skill, thoroughmess, and preparation reaosnably necessary for the representation.

Exception #1: If L does not have sufficient learning and skills when the representation begins, L may still competently represent client if
- L associates or consults
- Acquires necessary skills
- Refers the matter out

Exception #2: Emergency

26
Q

CA
Duty of Competence

A

L must not intentionally, repreatedly, with gross negligence fail to perform legal services with competence.

L’s duty to act competently applies to
1. Learning and skill
2. Mental, emotional, physical ability

Exceptions: Same as ABA

27
Q

Communicate

A

L shall
1. Promptly inform C of any decision or circumstance that requires the clients informed consent
2. Reasonably consult with the client about the means used to achieve clients objective
3. Promptly comply with reasonable requests for information

Exception: CA only. L can delay if reasonable belief C will cause death or SBH

28
Q

Regular Fee Agreements

ABA General Rule

A

All fees must be reasonable.

Factors
* Time and labor required
* Experience and reputation of L
* Nature of litigation
* Time limitations imposed by C
* Fee customarily charged
* Likelihood of limiting L from having time to work with other clients
* Whether fee is fixed or contingent

TENTFLaW

29
Q

CA Regular Fee Agreements

A
  • Must not be unconscionable or illegal
30
Q

ABA and CA

Writing requirements for Fee Agreements

A

ABA
* Should be communicated to Cm preferably in writing

CA
* Must be in writing if over $1,000
Except if
* C is a corporation
* Emergency
* Waives writing requirement
* Similar services

31
Q

Content of Fee Agreements

A

Must include
* How the fee is calculated
* Nature of the legal services
* Responsibilities of L and C

32
Q

ABA and CA
Contingency Fees

A

A contingency fee is an agreement in which L’s fee is determined by the outcome of the matter.

  • Writing
  • Signed by C (CA: Signed by L also)
  • State L % of Recovery
  • State Litigation expenses
  • State wehther expenses will be deducted before or after contingency fee calculated

CA must state that fee is negotiable.

NO CONTINGENCY FEE FOR DOMESTIC RELATIONS FOR DIVORCE, ALIMONY, PROPERTY SETTLEMENT, CRIMINAL CASE

33
Q

Referal Fees

A

L shall not give anything of value for recommending L services.

Exceptions
1. Qualified Referral Service
2. CA: Gift for past recommendation
3. It is between Lawyers and it is not exclusove and client is informed

34
Q

Content of Advertisement

A

ABA: Name and contact of at least one lawyer

CA: Needs name and address. Must be labeled advertisement at beginning and ending of ad.

35
Q

Solicitation of Clients

A

Lawyer shall not by in person, live telephone or real time electronic contact solicit professional employment.

Except: L can do so if person solicited is
* Family friend
* Close friend
* Family member
* Person with prior business or rofessional dealings
* Former Client

36
Q

Permissive Withdrawl (ABA and CA)

A
  • Client persists in fraudulent

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