Professional Responsibility Flashcards
When does the Attorney-Client Relationship form?
The Attorney-Client relationship forms when the client reasonably believes the relationship exists. Look to facts and whether they indicate the client believes so. No formal writing or agreement is required.
Communicating Fees
All rate or fee agreements must be communicated to the client before, or within a reasonable time after, the relationship commences.
Unauthorized Practice of Law
A lawyer must not knowingly assist a person who is not admitted to the bar in the unauthorized practice of law. A lawyer who does so may be subject to criminal, civil, and discipline under the ethics rules.
Duty to Communicate
Lawyers have a duty to communicate with clients, to keep them reasonably informed of the status of the matter, and to respond to their reasonable requests for information so that they can make informed decisions.
CA DISTINCTION: duty to communicate settlement offers that are written or an oral offer in a civil matter if it is a significant development.
Prosecutor’s Special Duties
- Must have probable cause to bring charges
- Disclosure of Exculpatory Evidence to Opposing Counsel
- Must not make extrajudicial statements that would have the substantial likelihood of heightening public condemnation of the accused and is required to prevent persons assisting with prosecution from making such statements.
Duty of Candor
A lawyer must not knowingly make a false statement of fact to a tribunal or fail to correct a false statement of material fact previously made.
Duty of Confidentiality
Lawyers owe clients a basic duty of confidentiality.
ABA: A lawyer is prohibited from disclosing information relating to representation of a client, unless (1) the client gives informed consent, (2) the disclosure is impliedly authorized in order to carry out representation, or (3) other specific exceptions apply.
CA: A lawyer is required to maintain involate the confidence, and at every peril to himself to preserve the secrets of the client.” A lawyer must not reveal confidential information unless the client gives informed consent or the lawyer reasonably believes the disclosure is necessary to prevent substantial bodily harm or death.
Conflicts of Interest: Current and Prospective Clients
Under the MR, a lawyer must not represent a client if doing so would be directly Adverse to the interests of another current client or if there is a significant risk that the representation of the client will be Materially limited by the lawyer’s responsibilities to the current client (A or M (AM)) unless:
- she Reasonably believes she can provide competent and diligent representation to each affected client
- the representation is Not prohibited by law
- they are not Directly adverse in the same proceeding
- each affected client gives Informed consent, confirmed in writing
(RNDI)
Conflicts of Interest: Current and Former Clients
Duty of loyalty extends beyond duration of representation. Under the MR, a lawyer who has previously represented a client in a matter must not subsequently represent another person in the same or a substantially related matter where their interests are materially adverse to the former client’s, unless the former client gives informed consent, confirmed in writing.
Duty of Competence
ABA: A lawyer must have legal knowledge, skill, thoroughness, and preparation reasonably necessary to represent a client. A lawyer should not accept representation in a matter unless it can be performed competently.
CA: A lawyer must not intentionally, recklessly, or repeatedly fail to perform legal services with competence. This extends to subordinates of a lawyer and non lawyer employees.
Duty to Withdraw (generally)
ABA: A lawyer is required to withdraw where the client’s demands would violate ethics rules or other law
CA: A lawyer is required to withdraw if she knows or reasonably should know the representation would result in a violation of an ethical rule.
Bases for Mandatory Withdrawal
- Resulting violation
- Lawyer’s health
- ABA: when physical or mental condition materially impairs his ability to represent the client
- CA: when physical or mental condition renders it unreasonably difficult to carry out representation effectively - Client’s bad faith
- Client acting without probable cause and for purpose of harassing or maliciously injuring another
- Discharge
*unless court forces you to continue
Permissive Withdrawal - No harm to client
CA: Does not permit a lawyer to seek withdrawal merely because withdrawal may be done without material harm to the client.
ABA: A lawyer may seek to withdraw if he can do so without materially harming the client.
Rejecting Representation for Personal Reasons (CA)
A lawyer has a duty never to reject, for personal reasons, the cause of the defenseless or the oppressed.
Prohibited Objectives of Employment
A lawyer must not:
1. bring an action without probable cause and for the purpose of harassing or maliciously injuring any person, or
2. present a claim or defense in litigation not warranted under existing law unless it can be supported by a good-faith argument seeking an extension, modification, or reversal of existing law
Attorney/Client Privilege Elements
- Confidential
- Communication
- Held by the client
- Indefinitely
Exceptions to the A/C Privilege
- Crime/Fraud Exception
- Disputes Between the Attorney and Client
- Estate Disputes
- Information likely to result in substantial bodily injury or death
Attorney Work Product
ABA: Prepared in anticipation of litigation. Can be discoverable only if the court determines that denial of discovery will unfairly prejudice the party seeking discovery
CA: A writing that reflects the lawyer’s impressions, conclusions, opinions, or legal research or theories are not discoverable under any circumstances.
Solicitation
ABA: Communication initiated by or on behalf of a lawyer or law firm that is directed to a specific person the lawyer knows or reasonably should know needs legal services in a particular matter and is offering to provide legal services in that matter. Prohibits solicitation by live telephone or in person contact. Exception for solicitation of a person who routinely used for business purposes the type of legal services offered. Attorneys can send general announcements, not considered solicitations.
CA: Targeted communication initiated by or in behalf of a lawyer that is directed to a specific person and that offers to provide, or can reasonably be understood as offering to provide, legal services. Prohibited where by in person, live telephone, or real time electronic contact when lawyer’s motive is pecuniary gain.
Advertisements
CA: Requires any advertisement include the name and address of at least one lawyer or firm responsible for its content.
ABA: Required advertisement to include contact information of at least one lawyer or firm responsible for its content.
BOTH: can include field specialization and certification (if actually certified by relevant authorities)
Referral Fees
ABA: Generally prohibit payment to anyone for recommending a lawyer’s services with few exceptions. A referral fee given in return for merely recommending violates this rule.
CA: Generally impermissible, except where an attorney gives a gift to a person for a referral that results in employment, so long as the gift was not given in consideration of any promise, agreement, or understanding that the gift would be forthcoming or additional referrals would be made or encouraged in the future.
