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.