Professional Responsibility Flashcards
Formation of L-C Relationship
- A L-C relationship is formed when a person seeks legal services from a L, and the L either:
(a) manifests consent to do so, or
(b) fails to manifest lack of consent to do so and knows or should know that the person would reasonably rely on the L to provide legal services. - In CA, the reasonable perception of a purported C may determine that such person deemed is a C of the L.
Proper Scope of L-C Relationship
- Generally, a C controls the objectives of the rep, and makes substantive decisions (whether to accept a settlement offer; or plead guilty, testify, or waive a jury trial in criminal cases).
- The L controls the means to accomplish those objectives, but must consult w/ the C as to such means.
- A L may limit the scope of the rep if:
1. it’s reasonable under the circumstances, and
2. the C gives informed consent.
Duty of Competence
- The duty of competence requires a L to possess the legal knowledge, skill, thoroughness and preparation reasonably necessary to represent his C.
- A L cannot take a case in an unfamiliar area of law unless:
(a) he associates with another competent L,
(b) he acquires sufficient learning and skill before performance is required, or
(c) in an emergency.
(ALE) - In CA, a L cannot intentionally, recklessly, repeatedly, or with gross negligence, fail to perform legal services with competence.
- A L should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.
Duty of Communication
The duty of communication requires a L to:
1. promptly inform the C of any situation where the C’s informed consent is required,
2. keep the C reasonably informed on the status of the matter and the strategy decisions,
3. promptly comply with requests for information, and
4. advise the C when the C expects the L to do something illegal or unethical.
Duty of Diligence
- A L shall act with reasonable diligence and promptness in representing a C.
- Unless the rep is properly terminated, a L must pursue the case to the end.
- In CA, a L cannot, intentionally, recklessly, repeatedly, or with gross negligence, fail to act with reasonable diligence in representing the C.
Duty of Confidentiality
- A L cannot reveal any information relating to the rep of a current/former/prospective C without her informed consent.
- However, a L may disclose CI in the following situations:
1. To prevent death or substantial bodily harm (ABA), or to prevent a crime that will likely result in death or substantial bodily harm (CA):
2. To prevent a crime or fraud (in which the L’s services were used) that will result in substantial financial loss (ABA);
3. To secure legal advice about the L’s compliance with ethical rules (ABA);
4. To defend a malpractice action or in a suit to recover legal fees (ABA and CA); or
5. To comply with other law or a court order (ABA and CA).
Inadvertent Disclosure
- A L shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of CI relating to the rep of a C.
- Under the ABA, a L who inadvertently receives a document or ESI must promptly notify the sender.
- In CA, a L who inadvertently receives material that reasonably appears to be confidential and privileged must (i) refrain from examining the material and (ii) promptly notify the sender.
Duty to Safeguard Property
- A L must hold the property of a C separate from the L’s own property.
- All C funds must be kept in a separate attorney trust account.
Duty of Loyalty
- A L owes his C the fiduciary duty of loyalty, which requires the L to act in the C’s best interest.
- A L cannot engage in self-dealing or act in his own interest rather than the C’s best interest.
Conflict of Interest (Current Clients)
- A L owes his Cs the fiduciary duty of loyalty, which requires that the L not represent a C when a conflict of interest exists.
- A conflict of interest exists if:
1. the rep is directly adverse to another C, or
2. there is a significant risk that the L’s rep will be materially limited due to his:
(a) personal interests or,
(b) responsibilities to another present/former C or third person.
Addressing Conflict of Interest
- A L may represent a C despite conflict of interest if:
1. he reasonably believes that he will be able to provide competent and diligent rep to the C,
2. the rep is not prohibited by law,
3. he’s not representing parties on opposite sides of the same litigation, and
4. each C gives informed consent (CA: informed written consent; ABA: informed consent, confirmed in writing). - In CA, a L must provide written disclosure when the L
(a) has a legal, business, financial, professional, or personal relationship w/ a party or witness in the same matter, or
(b) knows that another party’s L is a family member, lives with, is a C of the L, or has an intimate personal relationship w/ the L.
Conflict of Interest (Former Clients)
- A L owes his Cs the fiduciary duty…
- Former Clients of the Lawyer: Unless a former C gives informed consent, a L cannot thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former C.
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Former Clients of the Lawyer’s Previous Firm: Unless a former C gives informed consent, a L cannot knowingly represent a person in the same or a substantially related matter that the L’s firm had previously represented a C:
1. whose interests are materially adverse to that person, and
2. about whom the L had acquired CI that is material to the matter.
Use of Client’s Information
A L cannot use a current/former C’s CI to the disadvantage of the C unless the C gives informed consent.
Conflict of Interest (Imputed Conflicts)
A conflict of interest for one L in a firm is imputed to all other Ls in the firm, unless the conflict is:
(a) personal; or
(b) based on association with the L’s previous firm; and
1. the L is timely screened,
2. written notice is given to the former C, and
3. [CA only] the L did not substantially participate in the matter at the previous firm.
Conflict of Interest (Former Government Lawyers)
Former gov Ls (including prosecutors) who worked personally and substantially on a matter cannot work on that same matter at a private firm unless the gov agency consents in writing.
Business Transactions with a Client & Pecuniary Interests Adverse to the Client
- A L shall not enter into a business transaction with a current C or knowingly acquire a pecuniary interest adverse to the C unless:
1. the terms are fair and reasonable to the C and are fully disclosed in writing,
2. the C is advised to consult with an independent L and is given reasonable opportunity to do so, and
3. the C consents in writing.
Proprietary Interest in a Case
- Under the ABA, a L cannot acquire a proprietary interest in the cause of action or subject matter of litigation the L is conducting for a C, except that the L may:
1. acquire a lien to secure the L’s fee, and
2. contract w/ a C for a contingency fee in a civil case. - In CA, there is no direct counterpart to the ABA rule. However, retaining liens is not allowed.
Financial Assistance & Loans to Clients
- A L cannot provide financial assistance to a C, except in the following instances:
1. Advancing litigation costs and expenses in contingency cases,
2. Advancing an indigent C’s litigation costs and expenses,
3. [CA only] Paying a third party from funds collected or to be collected with the C’s consent, or
4. [CA only] A personal loan to the C, after the L is retained, with a written promise to repay by the C. - Under the ABA, loans to Cs for personal expenses are never permitted.
Payment of Legal Fees by a Third-Party
A third-party may pay a C’s legal fees if:
1. the C gives informed consent (in CA, informed written consent),
2. there is no interference with the L’s independence of professional judgment or the L-C relationship, and
3. information related to the rep remains confidential.
Limiting Liability to a Client
- In CA, a L cannot contract to prospectively limit the L’s liability to the C for malpractice (under the ABA, unless the C is independently represented in making the agreement).
- A L cannot settle a claim for professional malpractice liability, unless the C:
(a) is represented by an independent L, or
(b) is advised in writing to consult with an independent L and is given reasonable opportunity to do so.
