Professional Responsibility Flashcards
Lawyer Duty of Loyalty?
Place client’s interest above her own; avoid conflicts of interest.
Duty to Avoid Conflicts of Interest?
Must avoid all conflicts of interest - both actual (current) and potential (future).
Conflicts of Interest - Between Current Clients?
When one client’s interest is directly adverse to another.
Conflicts of Interest - Between Client and Another Client, Former Client, Third Party, or Lawyer’s Interest?
- Significant risk that
- Representation materially limited by
- Lawyer responsibility to another client, third party, self interest
ABA - Exceptions to Conflicts/May Still Represent If:
- Lawyer’s reasonable belief can still provide competent and diligent representation;
- No prohibited by law;
- Claims not against each other; and
- Informed written consent
Cal - Conflicts of Interest?
Even if no signifigant risk of conflict, still a conflict requiring written disclosure:
1. L or firm has relationship with party or witness; or
2. Another party’s L related to L or relationship with L or is client of L or firm.
Three Types of Conflicts?
- Other client
- Third Party
- Lawyer’s personal interest
Conflicts of Interest - Insurer and Insured?
California allows; deemed not a conflict to represent both.
Representing Corporation/Organization?
- Corporation/organization is the client
- May represent employees so long as no conflict
Representing Corporation - Informing Internal Higher Authority?
- L knows employee engaged in wrongdoing
- Likely to result in susbtantial injury to organization
- L refers up to higher internal authority
Representing Corporation - Higher Authority Does Not Act?
ABA: may report out and reveal info if necessary to prevent the injury
Cal: may not report/disclose, should urge reconsideration, resign/withdraw; EXCEPT death/substantial bodily injury, then must report
No aggregate settlement/pleas
Unless informed written consent
Former Government Employees?
- May not reporesent privately
- If participateed personally and substantially
- Unless informed written consent
Imputed Firm Disqualifications?
Conflict for Lawyer applies to entire firm, unless:
1. Based on personal interest; OR
2. Based on former client at former firm, timley screened, and written notice to former client, certify compliance
Client can waive.
Conflicts of Interest - Lawyer Leaves Firm?
- Firm allowed to represent client with adverse interest
- To previous client of departed lawyer
- UNLESS matter substantially the same and any remaining lawyer(s) have confidential info
Compensation by Third Party for Representation?
Allowed if:
* Informed consent
* No interference with L & client
* Information remains confidential
Opposing Lawyer is Relative?
Requires informed consent.
CAL would need written disclosure.
Conflict with Lawyer’s Personal Belief?
Requires informed written consent.
Sexual Relations with Client?
Only allowed if preexsting, consensual.
Business Transactions with Client?
Allowed if:
1. Terms fair/reasonable
2. Terms fully disclosed to client in writing
3. Advised to seek independent counsel
4. informed written consent
5. CAL - L’s role also disclosed in writing
Professional Responsibility - Gifts?
- L cannot solicte substantial gifts
- L cannot prepare instrument that gives gift unless relative
- CAL - L may accept gift if independent L certifies OR if gift fair and no undue influence
Proprietary Interest?
Not allowed unless lien for fees or contingency fee (civil case)
ABA - Financial Assistance to Client?
- Advance costs and expenses in contingency cases
- Advance costs and expenses for indigent client
Cal - Financial Assistance to Client?
May lend to client after employment for any purpose if client promises in writing to repay the loan.
ABA - Limiting Malpractice?
Allowed if advised by independent counsel
Cal - Limiting Malpractice?
Never
Settle Malpractice Claims?
ABA - advised in writing to seek outside counsel
Cal - represented by outside counsel
Duty to Communicate?
- Prompty inform client of status of case
- Promptly respond to client
Cal: allowed to delay if client will harm another.
Lawyer and Client Roles?
Lawyer decides legal strategy
Client decides substantive issues/objectives
ABA - Duty of Confidentiality - Cannot reveal unless?
Cannot reveal unless:
1. Informed consent
2. Impliedly authorized
3. L reasonably believes necessary to prevent death or SBH
4. L reasonably believes necessary to prevent/mitigate crime/fraud using L services
4. Comply with law
5. Secure legal advice
6. Establish claim or defense for L
Cal - Duty of Confidentiality - Cannot reveal unless?
Cannot reveal unless necessary to prevent death or SBH; or compelled by court order.
Even with death/SBH:
* Disclosure optional
* Try to dissuade
* Must inform client of planned reveal
Attorney-Client Privilege?
- Confidential communication intended
- Facilitating legal services
- Last until after death (FRE) or estate settled (CEC)
Attorney-Client Privilege Exceptions?
- L’s services to further crime/fraud
- Dispute with L
- Cal - L reasonably believes necessary to prevent crime with death or SBH
ABA - Reasonable Fee Factors (TENT FLAW)?
TENT FLAW
* Time limitations
* Experience, repuration, ability
* Nature and length of relationship
* Time, labor, novelty, difficulty
* Fee customarily charged
* Likelihood to preclude other work
* Amount involved/results obtained
* Whether fixed or contingent
Cal - Not Unconscionable Fee Factors (TENT FLAW + Furry Dogs Satisfy Anxious Clients)?
ABA (TENT FLAW) + Furry Dogs Satisfy Anxious Clients
1. Fraud or overreaching by lawyer in setting fee
2. Disclosure of material facts or not by lawyer?
3. Sophistication of L and client
4. Amount of fee vs. value of services
5. Consent (informed) to fee
Fee Arrangments Should Include?
- How fee calculated
- Nature of services
- Responsibilities of L and Client
Cal - Fee Arrangements over $1,000 requires writing unless:
In writing unless:
1. Corporate client
2. Emergency
3. Client waives in writing
4. Previous client and similar service
Fee Disputes - Arbitration?
ABA encourages.
Cal requires.
Contigency Fee Agreement Requirements?
- In writing
- Signed by client (and L in Cal)
- Method for fee and percentage
- Expenses to deduct and when
- Cal - told negotiable except health care
NEVER for domestic or criminal cases.
Fee Splitting/Sharing?
Never with non-lawyer
Allowed with lawyer if:
1. Client consents in writing
2. ABA - total fee reasonable and each proportionate to each lawyers work
3. Cal - lawyers enter written agreement, does not increase total fee from division, full written disclosure of terms before consent
Referral Fees/Referral Gifts?
- Reciprocal referral agreement allowed if not exlusive and client informed of agreement
- No gifts of value allowed unless qualified referral service approved by authority
- Cal - allows gifts for past recommentations that resulted in employment
ABA - Duty of Competence/Care?
- Must have knowledge, skill, thoroughness, and preparation resonbably necessary for representation.
- May associate or consult with another lawyer to aquire before performance or refer matter.
Cal - Duty of Competence/Care?
- Must not intentionally, recklesssly, with gross negligence, or repeatedly fail to perform with competency
- Applies to learning, skill, mental, physical, and emotional abilities
- May associate or consult with another lawyer to aquire before performance or refer matter.
ABA - Duty of Diligence?
Act with reasonable diliegence and promptness
Cal - Duty of Diligence?
- Shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence
- Diligence = commitment and dedication and no neglect, disregard, undue delay to legal matters
Safekeeping of Client Property?
- Money: trust account separate with five years of accounting
- Advance Payments: withdraw as earned (ABA) or place in operating account if client writing (Cal)
- Physical: separate
Mandatory Withdrawal?
- Violation of rules
- Mental/physical condition
- Discharged
- Cal - Knows client action to harass
Permissive Withdrawal (Both, ABA, and Cal) ?
- Fraud/crime using L (reasonable belief)
- Used L for fraud/crime
- Representation unreasonably difficult
- Client fails obligation
- Good cause
ABA:
* No materially adverse effect to client
* unreasonable financial burden
* Client’s action repugnant to L
Cal:
* Client assents
* Lawyer’s mental/physical makes difficult
* Continue likely to violate PR rules
* Client has no good faith (keeps insisting)
* Unable to work with co-counsel
Duty to Client on Withdrawal?
- Reasonable notice
- Surrender papers and property
- Refund fees not earned.
Advertising/Solicitation Requirements?
- No false/misleading (truthful, labeled as ad, name and address required)
- No direct soliciation
- Specialist if approved
- Cal - presumed violation if guarentee/warranty, testimonial without disclaimer, no fee without recovery label unless client cost disclosed
Partnering with Non-Lawyers?
Never allowed.
Liability for Another Lawyer?
Yes, if ratify or supervise and could mitigate.
Duty of Fairness?
- Represented parties need their lawyer present/permission
- Corporate consent to speak
- To court
- To opposing counsel (no falsity, return inadvertent material, no suppression, witness tampering)
- No influence judge or jury
- Trial publciity - no extrajudicial statements if material prejudice
- Prosecutors must give exculpatory evidence to D
Reporting Ethical Violations?
ABA - must report if lawyer knows violation that raises substantial questions as to honesty, trustworthiness, or fitness
Cal - permitted but not required.
Cal - must self-report most violations
Duty to Public/Profession?
- Do not bring frivilous claims
- Do not counsel criminal conduct or fraud
- Cal - Do not bring harassing claims or threaten to obtain advantage
