Professional Responsibility Flashcards
ABA and CA
Competence (ABA)
Lawyer must have legal knowledge, skill, thoroughness and preparation reasonably necessary to represent client.
Competence (CA)
Lawyer may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services.
What are the duties that a lawyer owes to their clients?
Pneumonic: Clients Love Fierce Counsel
(1) Confidentiality
(2) Loyalty
(3) Fairness
(4) Competence
Diligence (ABA)
Lawyer must act with reasonable diligence and promptness in representing client.
Diligence (CA)
Lawyer may not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing client.
What is reasonable diligence?
Commitment and dedication to the client’s interests
Conflict of Interest
Lawyer may not accept of continue representation of client if:
(1) The representation is directly adverse to another client’s interest,
(2) there is a significant risk that representation of C will be materially limited by lawyer’s responsibilities to another client or former client or by lawyer’s personal interest
AND in CA only:
(3) Lawyer has a legal, business, financial, professional, or personal relationship with party or witness in same matter
Business Transactions- A lawyer must not enter a business transaction with a client unless…
Pneumonic: First Discuss Over Coffee
(1) Terms are (f)air and reasonable
(2) Terms are fully (d)isclosed to client in writing
(3) Client is advised to seek (o)utside counsel
(4) Informed (c)onsent in writing from client
Fees (ABA)
Fees cannot be unreasonable
Consider:
- novelty and difficulty of legal issues
- time limitation
- nature of relationship with client
-experience
-contingency
Preferably in writing unless a contingency fee. If it is a contingency fee, it must be in writing.
Fees (CA)
Fees cannot be illegal or unconscionable
Consider:
- amount in proportion to value of legal services
-relative sophistication of attorney
-client’s informed consent
For non-contingency cases, writing is only required if expenses are reasonably foreseeable to be greater than $1,000. Contingency cases must be in writing
Fee Splitting (ABA)
Must only happen between lawyers and must
(1) be proportional to the work done by each lawyer or
(2) if no proportional, each attorney must assume joint and liable responsibility
Fee Splitting (CA)
In CA, lawyers may split by any amount without assuming joint and liable responsibility.
However,
(1) client must agree in writing and
(2) Total fee may not be increased because of fee splitting
Duty of Confidentiality (ABA)
A lawyer must not reveal information relating to the representation of client without informed consent of client.
Exceptions:
(1) May reveal to the extent the lawyer believes is reasonably necessary to prevent reasonably certain death or substantial bodily harm.
(2) To the extent that the lawyer believes is reasonably necessary to to precent crime/fraud likely to cause substantial financial harm
(3) To get ethics advice
(4) In a suit against a client or a suit by client
(5) As compelled by law or court order.
Reporting Up (When Organization is Client)
If a lawyer knows that an action of an officer or employee is likely to result in substantial injury to the organization…
(1) The lawyer must report to the higher authority in the organization.
(2) If this fails, the lawyer may reveal info relating to representation to the extent necessary.
In CA lawyer must not violate duty of confidentiality so cannot reveal confidential information to outside organization. Thus, in CA, a lawyer may be forced to withdraw.
Duty to Communicate
Lawyer must communicate with and keep client reasonably informed of all significant developments in representation.
If a settlement offer is made, lawyer must convey offer to all clients and get agreement.
Limiting Scope of Representation
A lawyer may limit the scope of the representation if:
(1) The limitation is reasonable under the circumstances, and
(2) the client gives informed consent.
Mandatory Withdrawal from Representation
A lawyer must decline to take on representation, or must withdraw if:
(1) representation will result in violation of the rules of professional conduct
(2) lawyer’s physical or mental condition substantially impairs the lawyer’s ability to represent the client
(3) the lawyer is discharged by the client
AND IN CA:
(4) client is bringing an action without probable cause and for the purpose of harassing or maliciously injuring a person
Permissive Withdrawal from Representation (ABA)
A lawyer is permitted to withdraw if:
(1) Withdrawal can be accomplished without material adverse effect on the client’s interest OR
(2) where there is good cause to do so.
Good cause includes the following:
(1) client persists in criminal/fraudulent behavior using the lawyer’s services
(2) client has already used lawyer’s services to commit a crime or fraud
(3) The client fails to fulfill an obligation to the lawyer AND has been given reasonable warning that the lawyer will withdraw if obligation is not fulfilled
(4) representation has been rendered unreasonably difficult by client
(5) client insists on taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement
(6) representation will result in an unreasonable financial burden on the lawyer
Permissive Withdrawal from Representation (CA)
A lawyer may withdraw if:
(1) Client knowingly and freely assents to termination of representation
(2) Lawyer is unable to work with co-counsel and withdrawing will serve client’s interests.
(3) Lawyer’s mental or physical condition makes it difficult to continue
(4) Client persists in criminal/fraudulent behavior using the lawyer’s services
(5) Client has already used lawyer’s services to commit a crime or fraud
(6) The representation has been rendered unreasonably difficult by the client
Duties Upon Withdrawal
Lawyer must take steps to the extent reasonably practicable to protect the client’s interests.
This includes:
(1) notice to client
(2) surrendering papers and property
(3) refunding any unearned advance payment
Duty of Candor
A lawyer is required to present the law, facts, and evidence to the tribunal in a truthful manner.
This includes:
(1) Not knowingly making a false statement
(2) Correcting previously made false statements of material fact or law
(3) Disclosing controlling authority directly adverse to client’s position that has not been disclosed by opposing counsel
(4) Not knowingly offer false evidence
AND IN CA:
(5) May not knowingly misquote to a tribunal the language of a book, statute, decision, or other authority.
Offering False Evidence
A lawyer must refuse to offer evidence that they know is false.
If a lawyer does not know, but reasonably believes that the testimony or other evidence will be false, the lawyer may refuse to offer evidence that they reasonably believe is false, except for a criminal defendant’s testimony on their own behalf.
What remedial measures must be taken if a lawyer has offered evidence and later discovers it is false?
Step 1: Urge the client in withdrawing or correcting it
Step 2: If unsuccessful, seek to withdraw and/or take other measures to strike the evidence
Step 3: If all else fails, disclose the situation to the judge.
IN CA: reasonable remedial measures must not involve revealing information that is protected under the duty of confidentiality.
What if a criminal defendant intends to offer false evidence? (ABA)
(1) Try to persuade the client not to testify falsely or to recant the false testimony.
(2) Consider withdrawing
(3) If all else fails, reveal the situation to the judge
What if a criminal defendant intends to offer false evidence? (CA)
(1) Try to persuade the client not to testify or to recant the false testimony
(2) Consider withdrawing
(3) If all else fails, offer the defendant’s testimony in narrative form.
Trial Counsel as Witness
A lawyer must not act as an advocate at a trial which the lawyer is likely to be a necessary witness.
However, dual role is permitted when:
(1) the testimony will relate solely to an uncontested issue
(2) will relate solely to the nature and value of legal services
(3) withdraw will cause substantial hardship (ABA ONLY)
(4) Client provides informed written consent to the dual role (CA ONLY)
Duty of Fairness to Opposing Party
Lawyer may not engage in dishonest conduct or trick the opposing party.
This includes:
(1) not tampering with evidence
(2) turn over incriminating evidence
(3) if inadvertently received confidential document, refrain from reading, and notify sender
(4) make reasonable efforts to expedite litigation
Duty to Report Misconduct (ABA)
If a lawyer knows of another lawyer’s violation of riles that raises substantial question as to honesty, trustworthiness, or fitness as a lawyer, lawyer must report to an authority.
Do not have to report if misconduct was learned through confidentiality or privilege.
