Professional Responsibility Flashcards
When is there a duty to reject representation?
ABA/CA: When representation would violate an ethical rule or the law.
CA: When L knows/should know there is no probable cause to bring the action AND the action is being brought to harass or maliciously injure a person.
ABA/CA: L must not bring a claim that is not warranted under existing law, unless it can be supported by a good faith argument seeking a change in the law.
When does the L-C relationship begin?
When the client reasonably believes the relationship begins. A formal writing is not required.
What are the duties of L and C regarding settlement offers?
Only the client has the authority to make the decision to reject/accept a settlement offer.
L must communicate all bona fide settlement offers to C.
L’s strategy in representation
L has authority to make decisions about strategy to achieve C’s goals.
L must reasonably consult with C and keep them reasonably informed about the case status.
What must L do if C is engaging in criminal/fraudulent conduct?
L must not counsel or assist C in criminal/fraudulent conduct.
L must stop assisting the client and withdraw from representation.
Termination of Representation
C has an absolute right to discharge L for reason or no reason. L must withdraw if discharged, unless ordered otherwise by a court.
When MUST L withdraw from representation?
When failure to do so would result in violating ethics or other law.
When C asks L to engage in criminal or fraudulent activity.
CA: If he knows/should know the client is asserting a claim/defense w/o probable cause and for the purpose of harassing or maliciously injuring a person.
Under the ABA, when MAY L withdraw from representation?
At any time if he can do so without materially harming C.
L can withdraw, even if harm will result, when:
- C engages in criminal or fraudulent conduct
- L learns C used his services to commit criminal/fraudulent action
- C insists on a course of action that L finds repugnant or which L has fundamental disagreement with
- C has made representation unreasonably difficult
- Representation will result in an unreasonable financial burden on L
Under CA rules, when MAY L withdraw?
- C insists on presenting a claim or defense not warranted under existing law and cannot be supported by a good faith argument for an extension, modification, or reversal of existing law;
- C either seeks to pursue criminal/fraudulent conduct or has used L’s services to advance conduct L reasonably believes was a crime/fraud.
- C insists that L pursue a course of conduct that is criminal or fraudulent.
- C, by other conduct, renders it unreasonably difficult for L to carry out the representation effectively, OR
- Continuation of representation is likely to result in violation of CA rules or state bar act.
What is the procedure for L’s withdrawl?
- Give C reasonable notice
- If litigation is pending, must get court approval
- Court may order L to continue representing if withdrawal would materially harm C’s case
What must L do upon termination?
- Return all papers and property to C
- Safeguard C’s property and papers from damage while in his possession
- Under ABA, L may retain papers to obtain payment in limited circumstances
- Under CA rules, L must return of all papers and property
- Return any advanced fees that were not earned
Fees, generally
ABA: must not be unreasonable
CA: must not be unconscionable
When must fee agreement be in writing?
CA: if fees exceed $1000, AND:
1. be in writing
2. state fees and services to be provided
3. signed by BOTH parties, AND
4. provide written copy to C/C’s rep
*Writing not required when C is a corporation
*All contingency fee agreements must be in writing
When are/are not contingent fees permitted?
Generally permitted, but are not allowed in:
- Criminal cases
- Domestic cases when fee is contingent on obtaining divorce or on the amount of support recovered
What does a contingent fee agreement require?
- Writing, signed by C
- Terms of calculating fees, AND
- Expenses that C is liable for
CA: Duplicate copy signed by C and L to be provided at signing
When is fee splitting allowed?
ABA: when…
- fee is in proportion to the services provided by each L
- client agrees in writing
- charged fee is reasonable
CA: when…
- Ls enter written agreement to divide fee
- C provided written consent after full disclosure of splitting
- total fee charged is not unconscionable
Under both, fees must not be higher because multiple attys are working on the case.
Are referral fees allowed?
ABA: Generally prohibited, unless:
1. paying fees of a legal services plan, OR
2. approved lawyer-referral service
CA: L may give gift or gratuity for a referral, provided that the gift or gratuity was not offered in anticipation of the referral or future referrals.
Commingling of funds
L must keep C property separate from their own.
No funds belonging to L or law firm may be deposited in a client trust account or otherwise commingled with client funds, except for funds reasonably sufficient to pay bank charges.
Dispute over funds
L must distribute the undisputed funds to the C and keep disputed funds in C’s trust account.
L-C privilege
Applies in judicial and other legal proceedings in which L may be called as a witness or otherwise asked to provide evidence relating to C.
When are confidential communications between C&L privileged?
- C must intend for communication to be confidential; AND
- Communication must be for the purpose of seeking legal advice and representation.
C holds the privilege, and L must assert it on C’s behalf.
How long does the L-C privilege last?
ABA: indefinite, survives C’s death
CA: until D’s estate is settled and personal rep is discharged
Exceptions to the L-C privilege
ABA: no privilege when communication relates to C’s future crime or fraud
CA:
- applies to future crime or fraud committed by anyone, not just the client
- when L reasonably believes that disclosure of any confidential communication relating to L’s rep is necessary to prevent a criminal act that L reasonably believes is likely to result in the death or substantial bodily harm of an individual
What is work product?
Material created by L in anticipation of litigation.
CA: writing that reflects L’s impressions, conclusions, opinions, or legal research or theories –> not discoverable under any circumstances
Other lawyer WP is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that’s claim/defense or will result in an injustice.
