Professional Responsibility 16-30 Flashcards
Generally, a conflict of interestis imputed to the entire firm, and all lawyers in the firm are disqualified from the representation.
When is this NOT the case?
When:
The conflict is purely personal and doesn’t materially limit the representation; OR
It arises out of association with the lawyer’s previous firm and the lawyer is properly screened.
Priority: Medium
When is a former Government Lawyer not allowed to work on a matter?
If the govt. lawyer worked personally andsubstantially on a matter, he CANNOT work on that same matter at a private firm unless:
the government agency consents in writing.
BUT, the conflict will NOT be imputed to the rest of the firm if: (1) the lawyer is properly screened; AND (2) prompt written notice is given to the govt. agency.
Priority: Medium
May a lawyer own and operate a business separate from the practice of law?
Yes.
However, he must be careful to not engage in a business that would pose a conflict of interest with his clients.
Priority: Low
When are business transactions between a lawyer and client permitted?
If:
All terms are fair and reasonable to the client;
All terms are fully disclosed in writing;
The client is advised to consult outside counsel (and given reasonable time to do so); AND
The client consents in writing.
Priority: HIGH
When can a lawyer acquire aproprietary interest in the cause of action or subject matter of litigation?
When the interest is:
A lien authorized by law to secure the lawyer’s fee/expenses; OR
A contingency fee in a civil case.
*In CA, there is no similar rule.
Priority: Medium
Loans to Clients
(ABA vs. CA)
ABA: Loans in excess of litigation costs/expenses are NOT permitted.
CA: Loans ARE permitted if:
made after lawyer is retained,
with written promise to repay by client, AND
compliance with relevant ethical rules (concurrent conflicts rule + business transactions with client rule).
Priority: Medium
When may a lawyer advance an indigent client’s litigation expenses?
When the lawyer can later recover the expenses as part of his contingency fee.
Priority: Medium
When may a third-party pay a client’s legal fees?
When:
The client gives informed consent(need informed written consent in CA);
There is no interference with the lawyer’s independence of professional judgement; AND
The information related to the representation remains confidential.
Priority: Medium
May a lawyer serve as a board member for an Organization he represents?
YES.
But, he must do so effectively AND without jeopardizing his ethical duties to the organization as his client.
*He will be held to a higher standard in his knowledge of company matters.
Priority: Medium
When can a lawyer settle aggregate claims?
With informed written consent of each client.
Priority: Low
Contracts Limiting a Lawyer’s Liability
(ABA vs. CA)
ABA: Contract is permitted if the client is independently represented in making the agreement.
CA: Lawyer CANNOT contract to limit prospective liability (for malpractice).
ABA & CA: Lawyer CANNOT settle a claim for malpractice liability UNLESS: (a) client has independent lawyer; OR (b) the client is informed in writing that they may seek the advice of an independent lawyer (and is given an opportunity to do so).
Priority: Low
Sexual Relations with Clients
(ABA vs. CA)
Under both ABA & CA, a lawyer CANNOT engage in consensual sexual relations with a client UNLESS the relationship existed before the representation.
*In CA, a lawyer’s spouse or registered domestic partnerare specifically excluded from the definition of “current client”.
Priority: Medium
Who does the attorney represent when retained by an Organization?
The Organization is the client, and lawyer MUST act in its best interest.
*The lawyer generally DOES NOT represent the officers, directors, or managers of the organization individually(unless otherwise agreed).
Priority: Medium
What action may a lawyer take when representing an organization, and is aware of a matter that violates a law, legal obligation, or will result in substantial injury to the organization?
Lawyer MAY refer the matter to higher authorities within the organization.
ABA: Permits disclosure to an outside source if there is a clear violation of law AND it’s needed to prevent substantial injury.
CA: Outside disclosure generally NOT allowed. Only permits disclosure to outside source to prevent death or substantial bodily harm [see confidential info rule].
Priority: Medium
Mandatory Withdrawal
When MUST a lawyer withdraw from representing a client?
When:
Discharged;
Physical/mental condition of lawyer exists (ABA = materially impairs the representation; CA = unreasonably difficult to effectively carry out representation); OR
Continuing the representation would violate an ethics rule or other law.
In CA: A lawyer must ALSO withdraw if he knows that the client is bringing an action (1) without probable cause, (2) for the purpose of harassing or maliciously injuring a person.
Priority: HIGH
