Professional Responsibility Flashcards
Duty of Subordinate Lawyer
independent obligation to comply with the rules, even when acting at the direction of a supervisor. When faced with questionable instructions, he MUST voice his concerns about the instruction
-> if there is an arguable question of law or duty, then the subordinate lawyer may rely on the supervising attorneys reasonable resoulution
- Settlement offers
- When can a lawyer settle aggregate claims?
Must communicate
1) significant oral offers
2) ANY written offer (email, writing, letter)
Aggregate Claims
With informed written consent of each client.
Contingency fee Agreement
WATCH FANG
W = writing
A = all expenses to be deducted from the fee
T = timing of when lawyer gets his cut, either before or after fees deducted
C = client signs
H = how the lawyers fees were calcultated includings the percentage if settlement or trial
CA also requires:
F = final copy provided to client
A = Any expenses not included that client must pay directly
N = negotiable and not a set fee must be in agreement
G = good lawyer must sign
not for criminal cases or domestic relation cases (ca: recovery of post judgment amount for child/spousal support)
Fee
Under the ABA, a lawyer must charge a reasonable fee.
Under CA, a lawyer must not charge a fee that is unconscionable or illegal.
Factors to consider whether a fee is ethical or not include: time, difficulty, experience, work performed and result achieved, preclusion of other employment, and CA also looks at if the fee is proportional to the performance, sophistication of the client, and overreaching in setting the fee.
Duty to report another lawyer
MUST REPORT A LAWYER IF
lawyer knows the other lawyer violated ethical rules that raises a substantial question about their honesty, trustworthiness, or fitness as a lawyer
CA - credible evidence to know
3) the conduct is a criminal act or involves dishonesty, fraud, or misappropriating funds
4) report without undue delay that it wont materially damage client or law firm
5) inform bar
CA - Self Report
1) felony charge or convicted of serious crime
2) civilly liable for fraud or duty breach
3) sanctioned for $1k+, but not for discovery
4) within 1 year sued for malpractice 3 times or more
5) court judgment against you for malpractice
Regular Fee Agreement
Under the ABA, a written fee agreement is not required, unless it is a contingency agreement, however, the lawyer must communicate the fee to the clients. Further, while it is not required it is best practice to have a written agreement.
Under CA, all agreements must be in writing and must indicate the method for calculating the fees, the lawyer and client responsibilities, and the nature of the services to be performed.
A writing is not required if the agreement is for less than $1000, the client is corporation, a pre-existing relationship exists where the attorney has done similar work and the client know what fee to expect, informed consent followed by a writing to waive the agreement, or in an emergency.
Sharing fees
Under the ABA and CA, a lawyer may not share their fee with a non-lawyer, unless it is for a death benefit, retirement benefit, or to purchase a practice.
Fees may be split between lawyers if the client is informed, gives consent in writing, the fee is proportional to the amount of work done, the total fee is not increased by the split, and the total fee is reasonable.
CA differs in that they require a written agreement between the lawyers, written disclosure to the client, and the fee must not be unconscionable.
duty to communicate
Under the ABA and CA, a lawyer owes a duty to communicate to their clients any significant updates about their case, when their consent is required, provide information necessary so they can make informed decisions.
Duty of Diligence and Care
Under ABA, A lawyer must act with reasonable diligence, promptness, and care in representing their client. A lawyer must diligently pursue a case to completion. Under CA, a lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing their client.
Duty of Competence
A lawyer must provide competent representation to their client requiring legal knowledge, skill, thoroughness, and preparation necessary to effectively represent the client, including staying abreast of changes in the law and its practice, mental, physical, and emotional ability. In CA, a lawyer is only subject to discipline if they intentionally, recklessly, act with gross negligence, or repeatedly fail to perform legal services with competence.
A lawyer that is unfamiliar with the area of law can still take on the case if they associate with a lawyer that is competent in his own right or is able to sufficiently acquire the knowledge and skills before performance is necessary.
Conflict of Interest
A conflict of interest arises when the new clients interests are directly adverse with another clients interests or there is a significant risk that the lawyers ability to represent the new client is materially limited by another client, former client, third party, or by personal interests. Despite a conflict, a lawyer may still represent the client if he reasonably (subjectively and objectively) believes he can represent the client with diligence and competence, it is not prohibited by law, the clients are not against one another in the same litigation or transaction, and under the ABA informed consent followed by a writing is received and under CA informed written consent included written disclosure and written consent. California further differs in that it does not have the reasonably believed language and has the “no risk limitation” which requires a lawyer to send written disclosure of any potential or actual conflict when it involves a lawyer or someone within his firm who has or knows of a relationship with the other party or a witness or knows or reasonable should know of a relationship that exists with the opposing sides lawyer.
Duty of Loyalty
A lawyer owes the duty of loyalty to his client by putting the client’s interests before any interest of his own and avoiding conflicts of interests.
Duty to Report Professional Misconduct
ABA
1) lawyer knows
2) the other lawyer violated the ethical rules
3) that raises a substantial question
4) as to their honest, trust, fitness as a lawyer
CA
ABA
1) lawyer knows of credible evidence
2) of conduct that raises a substantial question
3) as to their honest, trust, fitness as a lawyer
4) conduct is criminal, dishonest, or misappropriation of funds
5) without undue delay
CA - must self report
1) charged with felony
2) convicted of serious crime
3) civilly liable for dishonest act, duty breach
4) disciplined or sanctioned more than $1k (not discovery)
5) 3 malpractice within year
Business Transactions between lawyer and client
FUNDS
F = fair and reasonable terms
U = clients understands the terms
N = Needs to be in writing with written client consent
D = Disclosure of all terms
S = client encouraged to seek independent counsel and given the oppurtunity to do so
Permissive Withdrawal
Mandatory Withdrawal
ABA: BAD
All: MUSTY
CA: GLARE
M = must get court permission if lawsuit has been filed
U = using legal services to commit a crime or continue a crim
S = some reasonable warning given to client, but fails to substantially fufull an obligation
T = the client is making it unreasonably difficult
Y = You have good cause
B = burden financially is unreasonable
A= client insists on taking action that L finds repugnant or fundamentally disagrees with
D = Damage wont be materially caused by withdrawal
G = client insists on taking taking an action or defenses that is lacking good faith and is unwarranted
L = likely violate ethical rule if continute to represent
A = actual consent from client with knowlege
R = really can not work with co-counsel + best interest of client to withdraw
E = effective representation is difficult due to mental or physcial condition
Mandatory - MID MUSH
M = must get court persmission if lawsuit had been filed
I = it will result in ethics rule violation
D = Discharged or terminated
M = materially limited representation by mental or physical condition ABA
U = unreasonably difficult representation by mental or physical condiction CA
S = Seeks or persists in using the lawyers services to commit a crime, despite lawyer trying ABA
H = harrasing or maliciously injuring a person its the purpose of bringing an action without probable cause CA
Duty of Withdrawl
R = reasonable notice to seek cancel
R = return property and documents
R = refund fees
After a lawsuit has been filed, the lawyer MUST obtain the court’s approval to withdraw.
- Duty of Confidentiality
- Confidential Disclosure is allowed when
- Inadvertant Disclosure
A lawyer has a duty to maintain the confidentiality of all information relating to the representation of a client. This duty is broader than the attorney-client privilege, and extends to all information conveyed between the lawyer and client/potential client, regardless of whether the client requested that the information be kept confidential or whether the use of the information will damage the client.
COLD
ABA: SAD
CA: GIRL
C = consent informed
O = ordered by the court
L = legal fee recovery
D = defend in malpractice suit
S = substantial financial loss will result + where the lawyers services were used + prevent fraud or crime
A = advice from other legal person to comply with ethical rules
D = Death or substnatial harm prevention
G = good faith attempt to counsel client to change course
I = if reasonable inform client of ability or decision to deisclose
R = Reasonably believe disclosure is necessary to prevent crim
L = likely result in death or substantial harm to a person
Inadvertant Disclosure
ABA: Lawyer has a duty to notify opposing counsel of any documents accidentally received.
CA: Must do three things:
1) Refrain from examining materials any more than necessary to determine if privileged;
2) Immediately notify the sender;
3) Proceed to resolve the situation.
*NOT required to return the documents under ABA or CA.
When is a Lawyer-Client Relationship formed?
A person seeks legal advice from a lawyer;
AND
The lawyer either:
Manifests consent to provide services; OR
Fails to manifest a lack of consent and knows the person would reasonably rely on the lawyer to provide legal services.
*In CA, the reasonable perception of a purported client may determine if such person is deemed a client of the lawyer.
Scope of Lawyer and Client Relationship
Generally, a client controls the goals and objectives of the representation while the lawyer controls the means and tactical descisions in how to achieve those goals and objectives, BUT must consult with the client as to the means he plans to use.
Client includes substantive descisions like = settlement offers, plead guilty, testify, waive a jury trial in criminal matter
Lawyer can limit scope if:
It’s reasonable under the circumstances; AND
The client gives informed consent.
