Professional Responsibility Flashcards
Formation of Lawyer-Client Relationship
The attorney-client relationship begins when the client reasonably believes the relationship exists, and no formal writing is required.
An initial consultation between an attorney and a client can result in an attorney-client relationship, if the client reasonably believes there is a relationship, even if there is no written agreement.
In general, there is no duty to accept representation. However, there is a duty to reject if it would violate an ethical rule.
Scope of Relationship (Settlement)
Only the client has the authority to make the decision to accept the settlement.
The attorney must communicate all bona fide offers of settlement to the client.
A lawyer who agrees to a settlement without the client’s consent is subject to discipline.
Scope of Relationship (Strategy)
The attorney has the authority to make decisions about strategy for achieving the client’s goals.
The attorney should reasonably consult with the client and keep him/her reasonably informed about the case status.
Assisting client in criminal/fraudulent conduct
A lawyer must not counsel or assist the client in criminal or fraudulent conduct.
If the client is currently engaging in such conduct, the attorney must stop assisting the client and withdraw from representation.
Termination of Representation Generally
A client has an absolute right to discharge (fire) a lawyer for reason or no reason.
The lawyer must withdraw if discharged unless ordered to continue by a court.
Attorneys must follow ethical rules when terminating representation of a client.
Mandatory withdrawal
An attorney must withdraw if failure to do so would result in violating ethics rules or other law, fired by client, or lawyer’s health at issue
Under CA rules, a lawyer must withdraw if he knows/should know the client is asserting a claim/defense without probable cause and for the purpose of harassing or maliciously injuring a person.
Permissive withdrawal
Under the Model Rules, a lawyer may seek to withdraw at any time he can do so without materially harming the client.
Under CA rules, a lawyer is not permitted to withdraw merely because it may be done without material harm to the client. (See below for bases for withdrawal).
Permissive withdrawal Continued MR
Under the Model Rules, a lawyer can withdraw, even if harm will result, in a number of situations, including if:
- The client engages in criminal or fraudulent action;
- Attorney learns that the client used his services to commit criminal or fraudulent action;
- The client insists on a course of action that the lawyer finds repugnant or which the attorney has fundamental disagreement with;
- The client has made representation unreasonably difficult (this includes a client’s failure to communicate with the attorney);
- The representation will result in an unreasonable financial burden on the lawyer (this is not allowed under CA rules); or etc
Permissive Withdrawal CA rules
A lawyer is not permitted to withdraw merely because it may be done without material harm to the client.
Instead: a lawyer may seek to withdraw when:
- The client insists on presenting a claim or defense not warranted under existing law and which cannot be supported by a good-faith argument for an extension,
modification, or reversal of existing law; - The client either seeks to pursue a criminal or fraudulent course of conduct or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;
- The client insists that the lawyer pursue a course of conduct that is criminal or
fraudulent; - The client, by other conduct, renders it unreasonably difficult for the lawyer to carry out the representation effectively; or
- A continuation of representation is likely to result in a violation of the CA rules or State Bar Act.
Procedure for withdrawal
A lawyer must give the client reasonable notice before withdrawing, to give the client a reasonable opportunity to find new representation.
A lawyer who wants to withdraw when litigation is pending must obtain court approval.
A court may order the attorney to continue representing the client if withdrawal would materially harm the client’s case.
Duties upon termination
Upon termination, a lawyer has a duty to minimize the harm to the client.
The lawyer must return all papers and property to the client. This includes a duty to safeguard the client’s property and papers from damage while they are in the attorney’s possession.
Under the Model Rules, an attorney may retain papers in order to obtain payment in limited circumstances;
the CA Rules require the return of all papers and property.
An attorney must also promptly return any advanced fees that were not earned.
Fees
Under the Model Rules, a lawyer must charge fees that are reasonable under the circumstances.
Under the CA Rules, fees must not be unconscionable.
When discussing whether a fee is reasonable or unconscionable, you should look for facts about how much the amount of fees, the time required to work on the case, the hourly fee, difficulty of the case, and the lawyer’s experience.
Fee Writings
In California, if the fees will exceed $1,000:
The agreement generally must (i) be in writing, (ii) state the fees and services to be provided, (iii) be signed by both parties; and (iiii) A copy of the written contract, signed by both parties, must be given to the client or his/her representative.
A writing is not required if the client is a corporation.
All contingency fee agreements must be in writing.
Contingent Fees
Contingent fees are generally permitted under the Model Rules and CA Rules but are not allowed in (i) criminal cases or (ii) domestic cases when the fee is contingent on obtaining divorce or on the amount of support recovered.
A contingent fee agreement requires:
▪ Writing, signed by client;
▪ Terms of calculating fees; and
▪ Expenses that clients are liable for.
CA only: A duplicate copy of the agreement signed by the attorney and client must be provided to the client at the time of signing.
Failure to comply: The agreement is voidable by the client, but the attorney is entitled to a reasonable fee.
Fee Splitting (Same Firms)
Lawyers in the same firm may split fees.
Fee Splitting (Different Firms)
Model Rules: Fee splitting is allowed if:
- The fee is in proportion to the services provided by each lawyer;
- The client agrees in writing to the fee-splitting; and
- The total charged fee is reasonable.
CA Rules: Fee splitting is allowed if:
- The lawyers enter in a written agreement to divide the fee;
- The client has provided written consent after full disclosure of the fee splitting; and
- The total fee charged is not unconscionable.
Under the Model Rules and CA Rules, the total fees must not be higher because multiple attorneys are working on the case.
Referral fees
The Model Rules generally prohibit paying someone for recommending a lawyer’s services, unless paying the fees of a (i) legal services plan or (ii) approved lawyer-referral service.
Under CA Rules, a lawyer may give a gift or gratuity for a referral, provided that the gift or gratuity was not offered in anticipation of the referral or future referrals.
Referral fees can take the form of money or gifts from an attorney to another person.
Forming Partnerships with non-lawyers and sharing fees with non-lawyers
Partnership: A lawyer may NOT form a partnership with a non-lawyer if ANY of the partnership activities constitute the practice of law.
A lawyer CANNOT share fees with a non-lawyer, unless:
■ Paid to a lawyer’s estate or a specified person as a death;
■ Paid to law firm staff through compensation or retirement agreements;
■ Paid as part of a court ordered fee and shared with a nonprofit organization that associated with the lawyer in the matter;
■ Paid to a lawyer’s estate or representative by a lawyer who purchases the practice; or
■ Paid to a lawyer referral service (CA).
Client’s Fund Accounts
In California, all funds received or held for the benefit of clients by a lawyer or law firm, including advances for costs and expenses, must be deposited in one or more identifiable bank accounts labeled “Trust Account,” “Client’s Funds Account,” or something similar.
No commingling of funds
▪ Lawyers must keep client property and funds separate from their own and are subject to discipline for commingling funds.
▪ No funds belonging to a lawyer 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.
Disputes over funds
If there is a dispute over the fees owed to the lawyer, the lawyer must distribute the undisputed funds to the client and keep the disputed funds in the client’s trust account.
Lawyer-Client Privilege
The lawyer-client privilege applies in judicial and other legal proceedings in which a lawyer may be called as a witness or otherwise asked to provide evidence relating to a client.
Confidential communications between a client and his lawyer are privileged:
▪ The client must intend for communication to be confidential; and
▪ The communication must be for the purpose of seeking legal advice and representation.
The client holds the privilege, and the lawyer must assert the privilege on his client’s behalf.
Lawyer-Client Privilege Split between MR and CA Rules
▪ Under the Model Rules, the privilege is indefinite, and survives the client’s death.
▪ Under the CA Rules, it terminates when the client’s estate is settled and the personal representative is discharged.
Lawyer-Client Privilege Exceptions (Future Crime or Fraud)
- Under the Model Rules, there is no privilege when a communication relates to a client’s future crime or fraud.
- In California, this exception applies to a future crime or fraud committed by anyone, not just the client.
Death or Substantial Bodily Harm: In California, no privilege applies if the lawyer reasonably believes that disclosure of any confidential communication relating to the
representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death or substantial bodily harm of an individual.
Lawyer-Client Privilege Exceptions (Death or Substantial Bodily Harm)
In California, no privilege applies if the lawyer reasonably believes that disclosure of any confidential communication relating to the representation of a client is necessary to prevent a criminal act that the lawyer reasonably believes is likely to result in the death or substantial bodily harm of an individual.
Work Product
o Work product generally refers to material created by the attorney in anticipation of litigation.
o In California, a writing that reflects a lawyer’s impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances.
o Other lawyer work product is only discoverable if the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party’s claim/defense or will result in an injustice.
Work Product NOTE
Read the exam facts carefully and determine whether the opposing party is seeking non-discoverable work product from the attorney, or if work product is potentially discoverable. An example of discoverable work product is a transcript of an interview with a witness who has died.
If the opposing party can demonstrate unfair prejudice if it is not allowed to discover this transcript, the court may require the attorney to share the transcript (but not his opinions or
notes about the transcript)
Duty of Confidentiality
A lawyer is prohibited from disclosing any information relating to the representation of a client, unless the disclosure is authorized by the informed consent of the client or impliedly
authorized in order to carry out the representation.
A lawyer must take reasonable precautions to safeguard confidential information from inadvertent/unauthorized disclosure to unintended recipients.
Exceptions to confidentiality (Death or substantial harm)
The Model Rules allow (but do not require) disclosure to prevent “reasonably certain” death or substantial bodily harm. Imminent harm or death is not required; a present and substantial threat is sufficient.
The CA Rules allow (but do not require) disclosure reasonably believed necessary to prevent a criminal act that the lawyer reasonably believes will result in death or
substantial bodily harm. The CA Rules only allow disclosure if the lawyer is preventing a “criminal act” reasonably believed to cause death or substantial bodily harm.
Under the Model Rules and CA Rules, this exception applies even if a third party and not the client causes the potential harm or death.
In CA, before revealing this information, an attorney must, if reasonable, make a good-faith effort to persuade the client to not commit/continue the criminal act. The attorney must also, if reasonable, inform the client of the attorney’s ability or decision to reveal the information.
Exceptions to confidentiality (Financial Harm)
The Model Rules allow (but do not require) an attorney to reveal confidential information if he reasonably believes it is necessary to prevent the client from committing a crime/fraud that will result in substantial injury to the financial interests/property of another and the client has used/is using the attorney’s services.
- This does not apply under the CA Rules!
