Professional Responsibility Flashcards
Client has final decision:
- Whether to accept a settlement offer
- What plea to enter
- Whether to waive a jury trial in a criminal case
- Whether the client will testify in a criminal case
Contingent fee
- Reasonable
- In writing and signed by client (CA requires agmt to be signed by both lawyer and client)
- Include:
-How fee calculated
-What expenses will be deducted from recovery
-Whether expenses will be deducted before or after contingent fee calculated
-What expenses client must pay regardless of outcome
CA further requires that the agreement state:
1. That the fee agreement is negotiable
2. How client will be charged for work not covered by the contingency
Diligence
Must act with reasonable diligence and promptness in representing a client
CA: No discipline unless intentional, reckless, gross negligence or repeated incompetence
Competence
In representing a client, a lawyer must act competently, with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
CA:
-Additionally recognizes mental, emotional, and physical ability as part of competence
-Lawyer only subject to discipline for intentional, reckless, gross negligence or repeated incompetence
If lawyer doesn’t know the law, they must decline representation unless they can:
1. learn it w/o undue expense or delay to client
2. consult with a competent lawyer
3. refer the matter to a competent lawyer
A lawyer who lacks competence may also act for a client in an emergency.
Confidentiality
The duty of confidentiality requires a lawyer not to reveal any information relating to the client’s representation.
Can’t use confidential info to client’s disadvantage unless client gives informed consent or an exception to the duty of confidentiality applies.
Mandatory withdrawal
§ Representation with result in violation of rules of PR or other law
§ Lawyer’s mental or physical condition substantially impair lawyer’s ability to represent client
§ Lawyer discharged by client
§ CA: another mandatory ground is if client is bringing action without probable cause and for purpose of harassing or maliciously injuring
Permissive withdrawal
§ ABA: Can withdraw if it can be done without material adverse effect on client’s interests, or where there is good cause.
§ A lawyer may withdraw from the case if the client fails substantially to fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning.
CA: Withdrawal is allowed if the client knowingly and freely assents
Business tx
- Terms fair to client
- Terms and lawyer’s role in the tx are fully disclosed in a writing the client can reasonably understand
- Client advised in writing that they should get independent outside from outside lawyer before entering into the arrangement
- Client gives informed consent in a writing signed by the client
Sexual relations
o A lawyer must not have a sexual relationship with a client (even if the client consents and even if the representation won’t be affected) unless the sexual relationship pre-dates the lawyer-client relationship
o If the client is an organization, the rule applies to a sexual relationship with a constituent of the organization who supervises the lawyer’s work or consults the lawyer about the organization’s legal matters
o CA: same, but there is an additional exception for when the lawyer and client are married or in a registered domestic partnership.
Compensation from third party
o Must not accept compensation for representing a client from a 3P unless:
1. Client gives informed consent (CA requires informed written consent)
2. Maintain independence
3. Maintain confidentiality
Paying witnesses
A lawyer must not offer an inducement to a witness that is prohibited by law, and it is generally improper to pay a witness for their testimony.
The following payments are generally allowed:
* Reasonable travel and incidental expenses
* Compensation for loss of time in attending and testifying
* Reasonable fees to expert witnesses
However, such payments must never be contingent on the content of the testimony or outcome of the case
Exceptions to confidentiality
-Collect attorney’s fees/defend malpractice
-Informed consent / implied authority
-Prevent reasonably certain death or substantial bodily harm (CA = prevent a criminal act likely to result in death or substantial bodily harm)
-Compelled by law or court
-Prevent or rectify substantial financial harm resulting from client’s crime or fraud using lawyer’s services
-Legal ethics advice
-Address conflicts of interest in routine conflicts checks
Financial assistance
Must not provide financial assistance to client except:
1. Can advance court costs and litigation expenses, and the repayment can be contingent on the outcome of the case
2. If client indigent:
o lawyer may pay the court costs and litigation expenses outright.
o lawyer may provide modest gifts to the client for food, rent, transportation, medicine, and other basic living expenses.
However, the lawyer must not promise or imply the availability of such gifts; seek or accept reimbursement; or publicize or advertise a willingness to provide such gifts to prospective clients.
CA rule on financial assistance
-can advance or pay any type of expense
-cant “buy” potential clients w/ promise to pay potential client’s debts
-can lend $ for any purpose if client gives written promise to repay
-with client’s consent, can pay client’s expense to 3P from funds collected in case
Settling existing malpractice claims
- Advise person in writing that independent counsel is desirable; and
- Give the person a reasonable chance to consult with independent counsel
Protecting client’s interests on termination
Upon termination of representation, a lawyer must take reasonable steps to protect a client’s interests.
1. Give reasonable notice and time to find another lawyer
2. Hand over file
3. Refund unearned payments
Fee agreement
ABA: no unreasonable fees
CA: no illegal or unconscionable fees
Consider:
1. Time and labor
2. Skill required
3. Customary fee
4. Attorney’s reputation
5. Whether fee is fixed or contingent
6. Opportunity cost for lawyer
7. Time constraints
8. Amount involved
9. Result obtained
CA: If total expense to client > $1000, fee agmt must be in writing unless:
1. Client is a corporation
2. Client states in writing they don’t want a written fee agmt
3. The legal services are the same kind of services that the client has previously received / paid for
4. Lawyer acted in an emergency to protect client’s rights
5. A writing is impractical for other reasons
Steps for resolving a current-client conflict
- Lawyer reasonably believes they can competently and diligently represent the client despite the conflict
- Representation not prohibited by law
- Representation does not involve being on both sides of the same case
- Each affected client gives informed consent confirmed in writing.
CA: both the disclosure to client and consent from client must be in writing
Lawyer opposing former client
A lawyer must not represent a client whose interests are materially adverse to those of a former client in a matter that is the same or substantially related to a matter in which the lawyer represented the former client, unless the former client gives informed consent, confirmed in writing.
“substantially related” means
1. they involve the same tx or legal dispute, or
2. there is a substantial risk that confidential info that would have been obtained in the first representation would materially advance the client’s position in the subsequent matter.
Lawyer opposing former firm’s client
If the lawyer’s former firm represented a client in a matter and the lawyer actually acquired material confidential information while working at the former firm, the lawyer must not subsequently represent another person in the same or a substantially related matter adverse to the former firm’s client, unless the former firm’s client gives informed consent, confirmed in writing.
Effect on incoming lawyer’s conflict on firm
o Firm must screen the conflicted lawyer out and give notice to client
o CA: If you substantially participated in your old firm, screening isn’t enough to allow your new colleagues to work on the case.
o Former client can waive conflict by giving informed consent confirmed in writing.
Firm opposing client of departed lawyer
Can, unless 1) matter same or substantially related to that in which the formerly associated lawyer represented the former client, and 2) at least one remaining lawyer in the firm has confidential info material to the matter
