Professional Responsibility Flashcards
1.1 Competence General
Shall not intentionally, recklessly, with Grosse negligence, or repeatedly fail to perform legal services with competence.
I) learning and skill
II) mental, emotional, and physical ability necessary for the performance of such service
Competence exceptions
I) Associates with competent lawyer
II) acquires sufficient competence through learning before performing
III) refers client to competent lawyer
Competence emergencies
Lawyer may provide assistance in an area in which the lawyer is not competent provided representation is appropriately limited.
1.2 Scope of Representation
Abide by clients decisions concerning objectives of representation and consult with clients as to the means by which they are pursued.
Lawyer may carry out on behalf of client as impliedly authorized to carry out.
Client decides whether to settle or plead guilty. Lawyer may advise but not make decision.
Scope of Representation Limitations
1.2.1 Advising or Assisting Violation of Law
Shall not counsel a client to engage, or assist, a client in conduct known to be criminal, fraudulent, or a violation of any law, rule, or ruling of a tribunal.
Lawyer can discuss consequence and help client make a good faith effort to determine the validity, scope, or application of a law, rule, or ruling.
1.3 Diligence
A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client.
1.4 Communication with Clients
Lawyer shall:
1) explain issues to a client so that informed decisions can be made
2) promptly inform of circumstances where informed consent is required
3) reasonable consult with client about the means used to accomplish the clients objectives
4) keep client reasonably informed of significant developments, including providing copies of documents when necessary
5) advise the client whenever representation is limited in some way
B) may delay communicating information to client if there is a reasonable basis to believe the client may cause harm.
1.4.1 Communication of Settlement Offers
A lawyer shall promptly communicate all terms of a proposed settlement or plea agreement in all cases.
1.4.2 Disclosure of Professional Liability Insurance
Lawyer must disclose they don’t have liability insurance at time of hiring.
If not disclosed must be within 30 days of learning of the deficiency.
1.4.2 Disclosure of Insurance Exceptions
1) previously provided written notification to client that lawyer doesn’t have insurance
2) a lawyer knows or reasonably should know that the lawyers legal representation is the client in the matter will not exceed four hours. If the representation exceeds for hours, disclosure is required
3) a government lawyer or in-house counsel need not comply provided the advice is being given to the government agency or company
4) a lawyer who is providing emergency legal services
1.5 Fees for Legal Services
Not agree to, charge, or collect an unconscionable fee.
Facts and circumstances:
Overreached or engaged in fraud
Material facts withheld
Sophistication of the client
Value of the services relative to labor
Skill, experience, and reputation needed to execute the representation
Nature, scope, and length of the representation.
Contingent Fees
Not permissible in criminal or family law cases where fees are contingent upon dissolution of a marriage or upon the amount of spousal or child support or value of property obtained
Fees Earned on Receipt
Permissible where a client agrees in writing after disclosure that the client will not be entitled to a refund of all or part of the fee charged.
Flat Fee
Permissible. Constitutes complete payment for the stated representation regardless of the amount of work ultimately involved.
1.5.1 Fee Divisions Among Lawyers
A) same firm may divide fees.
Different firms: 1) fee charged not increased because of fee splitting 2) in writing 3) client gives written consent after disclosure of the terms of the division including the identity of the lawyers or firms involved
B) ABA: proportional to the services performed or each lawyer assumes joint responsibility for the case.
1.6 Confidential Information of a Client
California Rule
Not reveal confidential information unless the client gives informed consent, or lawyer believes the disclosure is necessary to prevent a criminal act likely to result in death or substantial bodily harm.
Lawyer must first attempt to persuade the client not to commit the act or to prevent the potential harm. Must not disclose more than necessary and must reasonably inform the client of the disclosure
1.6 Confidential Information of a Client
ABA Model Rule
Shall not reveal unless it’s to prevent client from committing a crime or fraud that is reasonably certain to result in substantial injury to the financial interests or property of another and in furtherance which the client has used or is using the lawyers services;
Prevent mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from client doing so in furtherance of which client has used lawyers services.
1.6 Confidential Information of a Client
Self Defense
ABA: attorney may reveal confidential information to defend him or herself against a civil or criminal action regarding client.
CA Evidence Code says no privilege relevant to an issue of breach, by the lawyer or by the client, if a duty arising out of the lawyer-client relationship
1.7 Conflict of Interest: Current Client
A) without informed written consent from each client represent a client that’s directly adverse to another client.
B) can’t represent a client without written consent if there’s a significant risk the representation will be limited by duties to another client or former client.
C) not represent a client without written disclosure of the relationship to the client, where the lawyer or firm has a relationship with a party in the same matter
D) representation is permitted under the rule only if the lawyer complies with paragraphs a b c and
1) reasonably believes that they can provide competent and diligent representation to each affected client
2) representation is not prohibited by law and
3) does not involve the assertion of a claim by one client against another client represented by the lawyer in any proceeding before a tribunal
