Professional Responsibility Flashcards
Duty of Loyalty
A lawyer has a duty of loyalty to his client that requires L to place the interests of his client above all other interests.
Duty to Avoid Conflicts of Interest
A lawyer must avoid all conflicts of interest. This includes actual (current) conflicts and potential (future) conflicts.
Conflict of interest Exception
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
Prospective client and duties to a prospective client
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
Prospective client and duties to a prospective client
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
ABA and CA:
Duty of Diligence
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)
ABA and CA:
Duty of Diligence
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)
When does a conflict of interest occur?
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
Sexual relations with Client
L shall not have sexual relations with C.
Except: Consensual relationship existed before the L/C relationship began
ABA + CA:
Business Transactions with Client
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
ABA + CA:
Lawyer solicits/receives gifts from Client
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
ABA + CA:
L gives Client Financial assistance/Loans
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
Proprietary Interest
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
Compensation from 3rd Party
COI can exist. No compensation from third parties unless
- Informed consent (CA informed written consent)
- No interference with L independent professional judgement
- Information relating to representation remains confidential
Lawyer Seeks to obtain Publication rights to Clients Story
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!
ABA + CA:
L attempts to limit Malpractice Liability
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)
COI: New client represents a COI to former client
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
Lawyer represents new client to the detriment of a former client of a former firm!
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
- The new clients interests are materially adverse to the former client of the former firm and
- L acquired confidential information regarding the matter
Exception: Former client of former firm gives informed consent, in writing
Imputation of COI
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
ABA ONLY
Duty of Confidentiality
Lawyer shall not reveal information relating to the representation of a client.
Exceptions
- Informed Consent
- Impliedly Authorized
- Reasonably believes necessary to prevent Death or SBH
- To prevent or mitigate Crime or Fraud that is reasonably certain to result in substantial injury and used L services to do so
- Comply with court order
- Secure Legal Advice
- Establish claim or Defense
Cats and Dogs Can Cuddle And Dream
When L represents corporation:
When must lawyer report misconduct to a higher authority?
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
L represents Corporation:
What should L do if higher authority fails to act after L reports misconduct?
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.
ABA + CA:
Attorney Client Privilege
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
ABA + CA:
Attorney Client Privilege
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
