Professional Responsibility Flashcards
Duty of loyalty
A lawyer must put the interest of his client above all other interests. A lawyer must avoid all conflicts of interest with his client. A lawyer may still represent the client if:
1. the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation
2. representation is not prohibited by law
3. clients are not asserting a claim against each other
4. each client gives informed written consent
Reporting misconduct in an organization
If the lawyer knows or should know that an individual in the organization is engaged in an action that is likely to cause substantial injury to the organization, the lawyer shall report up. In CA if the highest authority refuses to take action the lawyer may not report out and must urge reconsideration or withdraw.
Imputed firm disqualification
A conflict for one attorney in a firm is imputed to all attorneys unless the conflict is (1) based on a former client at a prior law firm and (2) the conflicted lawyer is timley screened from participation and (3) the former client is provided written notice and (4) the prohibited lawyer did not substantially participate in the same or substantially related matter.
Compensation from 3rd parties
A lawyer shall not accept compensation from third parties to represent a client unless
1. the client gives informed written consent
2. No interferance with lawyers independent professional judgment
3. information remains confidential
Lawyer’s personal interest
A conflict of interest exists if there is significant risk that the representation of a client will be materially limited by the lawyer’s personal interest.
Opposing lawyer is lawyer’s relative
Informed written consent.
Business transactions with clients
- terms are fair
- terms are fully disclosed in writing
- client is advised in writing to seek independent counsel
- client gives informed written consent to the essential terms
Proprietary interest in a case
A lawyer shall not acquire a proprietary interest unless to:
a. acquire a lien to secure lawyer’s fees or
b. contract with a client for a reasonable contingency fee in a civil case
Lending money to clients
CA ok if client promises in writing to repay.
Duty to communicate
Promptly convey information. CA ok to delay to prevent imminent harm to a client.
Scope of representation
Lawyer must abide by client’s substantive decisions but is responsible for legal strategy.
Duty of confidentiality
A lawyer shall not reveal information without the informed consent of the client.
Except when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm, however, lawyer must:
1. make a good faith effort to disuade the client
2. Inform the client of the lawyers ability to reveal the information
3. Only reveal what necessary to prevent the crime
Except when compelled by law or court order.
Except in a controversy between lawyer and client.
ABA only: Financial harm, secure legal advice
Attorney-client privilege
Is an evidentiary privilege that allows a client to keep confidential all communications that are intended to be confidential and made for the purpose of facilitating legal services.
Fees
ABA - All fees reasonable
CA - Not illegal or unconscionable
Fee agreements should state/identify (1) how the fee is calculated (2) the nature of the legal services (3) the responsibilities of the lawyer and the client. California requires all fee agreements over $1,000 to be in writing unless:
1. the client is a corporation
2. the agreement was made during an emergency
3. the client waives the writing requirement in writing
4. services are for a previous client where the fee can be implied
Contingency fee agreement
Fee is dependent on the outcome of the matter. Must be:
1. In writing
2. Signed by the lawyer and client
3. state the method by which the fee is to be determined
4. state the litigation costs and other expenses to be deducted
5. state whether such expenses will be deducted before or after the contingency fee is calculated
6. CA fee must be negotiable
No contingency fees in domestic relations or criminal cases.
Fee splitting
Division of fees between lawyers of different firms
ABA:
1. division is proportionate
2. client consents in writing
3. fee is reasonable
CA
1. lawyers enter into a written agreement
2. client consents in writing after full written disclosure of the agreement
3. total fee not increased due to split
Fee sharing with non lawyers is not permitted
Finders fees
ABA does not allow finders fees or gifts. CA allows a lawyer to make a gift for past recommendations if the gift was not given as consideration for a forthcoming referral.
Duty of competence and care
A lawyer shall represent the client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Duty of diligence
A lawyer shall act with reasonable diligence and promptness in representing the client.
Duty to safekeep clients property
A lawyer shall hold property of clients or third persons connected with a representation separate from the lawyer’s own property.
Fees in dispute, lawyer must send money not in dispute and leave disputed portion in a trust account.
Mandatory withdrawal
A lawyer shall withdraw from representation when the representation will result in a violation of the rules of professional conduct or other laws (ABA). CA not other laws.
A lawyer shall withdraw if their mental or physical condition materially impairs the lawyer’s ability to represent the client.
A lawyer is discharged.
In CA, lawyer knows or should know that the client is bringing a case without probable cause or to harass or maliciously injure.
Advertising
Must not be false or misleading.
No direct solicitation except for free legal services, family members, former clients, or truthful nondeceptive letters labeled as advertising material.
CA prohibits no fee without recovery communications unless it also states whether the client will be liable for costs.
Unauthorized practice of law
No practice with a non-lawyer.
Duty of fairness
General duties to 3rd parties, opposing counsel, and the court.
A lawyer shall not communicate with parties or witnesses known to be represented by another lawyer unless the other lawyer has consented or the communication is authorized by law or court order.
To the court a lawyer shall not knowingly make a false statement of fact, fail to disclose adverse legal authority, offer evidence that the lawyer knows to be false.
To opposing counsel a lawyer shall not:
1. obstruct evidence
2. falsify evidence
3. promptly notify the sender of inadvertantly sent materials
4. disobey court rules
5. allude to any matter not supported by admissible evidence
Special duties of public prosecutors
Public prosecutors shall:
1. refrain from prosecuting charges not supported by probable cause
2. make reasonable efforts to ensure the accused is advised of the right to counsel
3. make timely disclosure of exculpatory evidence
4. refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused
5. seek wrongful convictions
Duty to report ethical violations
ABA requires.
CA permits but does not require reporting.
CA must self report in certain circumstances.
Duty to the public/profession
A lawyer shall promote public confidence in the profession.
always discuss along with fairness
