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Professional Responsibility Flashcards

1
Q

Duties to Clients

A
  1. Competence
  2. Diligence
  3. Loyalty
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2
Q

Duty of Competence

A

Lawyer must have legal knowledge, skill, thoroughness, and preparation reasonably necessary to Client.

  1. [CA] Lawyer may not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services.
  2. Lawyer may gain competency by associating with lawyer reasonably believed to be competent or acquiring sufficient learning and skill performance w/o undue expense or delay.
  3. Competency cannot be waived by client under any circumstances.
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3
Q

Duty of Diligence

A
  1. Lawyer must act with reasonable diligence and promptness in representing Client

*[CA] Lawyer not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing Client

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4
Q

Duty of Loyalty - Conflict of Interest

A
  1. Lawyer may not accept or continue representation of Client if (1) the rep is directly adverse to another Client’s interest; (2) there is a significant risk that representation of Client will be materially limited by Lawyer’s responsibilities to another Client or former Client, or by personal interest of Lawyer
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5
Q

Concurrent COI (joint clients)

A

Exists where the representation is directly adverse to another Client’s interest or there is a significant risk that representation of client will be materially limited by lawyer’s responsibilities to another client or former client or personal business -> Lawyer cannot represent client if there’s concurrent coi with another client unless lawyer reasonably believes he can competently and diligently represents both clients + each affected client gives informed written consent

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6
Q

Imputed disqualifications

A

One Lawyers COI disqualifies entire firm unless:

  1. Due to lawyer’s personal interest;
  2. Lawyer is screened from participation in subject, given no fee, and former client notified in writing;
  3. Lawyer is leaving the firm
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7
Q

Business Transactions

A

Lawyer must not enter into a business transaction with client unless :

  1. Terms are fair and reasonable to client and fully disclosed in writing;
  2. Client advised in writing to seek counsel;
  3. Informed consent in writing by Client
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8
Q

Gift from Client

A

Lawyer cannot induce or solicit a substantial gift from a client. Cannot prepare instrument giving himself a gift unless related to client.

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9
Q

Sexual Relations with Clients

A

Lawyer may not have sexual relation with client , unless existed, before attorney-client relationship. Lawyer’s conduct is not imputed to firm. If Client is an organization, rule applies to any constituent of the organization who supervises, directs, or regularly consults with lawyer concerning organization legal matters.

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10
Q

Proprietary interest in Client’s property

A

Allowed as lien to secure fees, reas contingency.

[CA] not allowed

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11
Q

Loans (advancing money to client)

A

Lawyer cannot provide financial assistance to Client in connection w/ litigation, except for advancing litigation expenses, or paying litigation expenses for indigent client

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12
Q

Former Clients

A

If relationship with former Client will substantially affect relationship with new Client, must give written disclosure to new client.

Substantially affect: law or facts overlap or confidences would hurt one to help another

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13
Q

Fees

A

Fees cannot be unreasonable/illegal/ unconscionable

Factors include novelty and proportion to value of services, informed consent to fee

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14
Q

Fee Agreement

A

PREFERABLY in writing, except for regularly represented clients with same basis or rate.

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15
Q

Contingency Fee

A

Contingency fee agreement must be in writing

  1. NOT ALLOWED for criminal or domestic relation cases - divorce, alimony/support, property settlement
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16
Q

Third Party Compensation

A

May accept compensation from someone other than Client only if:

  1. Client gives informed consent (CA + written)
  2. No interference with lawyer’s independence of professional judgment or with AC relationship; and
  3. Client information is kept confidential
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17
Q

Retainer Fees

A

Lawyer may not keep unearned fees. Lawyer may recover unpaid fees if fired by Client

[CA] : Lawyer and client may agree in writing to to non refundable fee to ensure Lawyer’s availability

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18
Q

Referral Fees

A

Referral fees generally prohibited. Lawyer may divide fees with another lawyer.

CA: Pure referral fee permitted. Lawyer may be compensated without involvement in the matter.

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19
Q

Fee Splitting

A

Fee splitting must only happen between lawyers only if:

  1. Division is proportional to work done by each lawyer,
  2. Client agrees in writing, and
  3. Total fee reasonable

CA: Lawyers enter into agreement into written agreement, client gives written consent, total fee not increased

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20
Q

CA Arbitration

A

Client may elect arbitration of dispute of Lawyer’s fees unless agreed in writing to mandatory arbitration.

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21
Q

Duty to Safekeep client property

A

Must keep funds in separate trust account.

Commingling with Lawyer’s funds permitted to the extent reasonably necessary to pay bank charges. Any disputed portion must remain in the trust account.

CA Exception: Advance flat fee may be deposited in operating account with written disclosure to client; if flat fee under $1k, agreement and notice to deposit are written and signed by Client

22
Q

Confidentiality

A

Lawyer must not reveal information relating to the representation of client without informed consent of client.

EXCEPTION:
1. Lawyer may reveal to extent lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm (CA - to prevent criminal act that L believes will happen)
2. Attorney-Client privilege: evidentiary privilege that allows client to refuse to testify and prevent lawyer from testifying in court about communications. unless client seeks services to enable future crime/fraud, suit v. client, formerly joint clients, competency
CA - to prevent substantial bodily injury or death.

23
Q

Organization as Client

A

Lawyer represents the organization and must conform representation to the idea that client is the organization.

  1. Lawyer must report to the higher authority, if this fails and there is substantial risk of harm to the org, lawyer may reveal information relating to representation to extent necessary
  2. CA: Lawyer must not violate duty of confidentiality, if this fails lawyer can withdraw
  3. When lawyer is dealing with organization’s constituents, and reasonable knows the orgs interests are adverse to those of constitutes, lawyer must explain adverse interest - must obtain consent of orgs counsel before communicating with a constituted of org
24
Q

Duty to Communicate

A

Lawyer must communicate with and keep client reasonably informed of all significant developments in representation.

  1. If settlement offer is made lawyer must convey offer to all clients and get agreement
  2. Lawyer must abide by client’s decisions regarding objectives of representation and reasonably consult with client as the means pursued. Lawyer must abide by client’s decision
  3. Lawyer may limit scope of representation if reasonable under the circumstances and client gives informed consent
25
Accepting Work
Lawyer must not accept employment if he knows or should know the purpose of the suit is frivolous 1. Not considered frivolous to make a criminal prosecutor prove each element of a crim
26
Zealous Advocacy
A lawyer must be a zealous advocate within the bounds of the law. Lawyer may not advise violation of law or file frivolous suit 1. Lawyer may conduct a defense such that a plaintiff must establish case beyond a reasonable doubt
27
Mandatory Termination
1. Termination is mandatory if representation will result in violation of the rules or other law, lawyer's physical or mental condition materially impairs ability to represent client 2. Termination or withdrawal need court permission if in proceeding before a court (CA: renders it unreasonably difficult to carry known client's action without probable cause and for purpose of harassing or maliciously injuring a person)
28
Permissive Withdrawal
Termination is permissive if client insists on taking action lawyer consider repugnant or has fundamental disagreement with, insists on pursuing criminal or fraudulent action, representation will be unreasonably difficult, client freely agrees to termination or other go cause Termination or withdrawal need court permission if in proceeding before a court
29
Withdrawal
If a lawyer withdraws, they are obligated to give notice and opposition to get other counsel, returned unearned fees, return client files
30
Malpractice Liability
Liability may not be prospectively limited unless client is independently represented in the agreement. Client needs written notice and reasonable opportunity to seek independent counsel before settling with lawyer. CA: 1. Criminal defendant who sues a lawyer for malpractice must make a colorable claim of actual innocence 2. Will or trust: intended beneficiary known to lawyer may also hold lawyer liable for malpractice
31
Duties to Tribunal
1. Criminal Prosecutor Duties 2. Duty of Candor 3. Duty to preserve decorum
32
Criminal Prosecutor Duties
Prosecutor must have probable cause to bring charges, make reasonable efforts to protect defendant's right to counsel, refrain from extrajudicial comments biased against defendant, disclose mitigating evidence to defendant and when prosecutor knows of new evidence creating reasonable likelihood that defendant did not commit the offense, promptly disclose evidence to defendant
33
Duty of Candor
Lawyer has a duty to not 1. knowingly make a false statement of material fact or law or fail to correct it 2. offer false evidence 3. fail to disclose controlling, directly adverse authority Lawyer may refuse to offer evidence he reasonable believes is false or disclose adverse. Testimony of criminal defense: if lawyer reasonably believes testimony will be false, must still allow defendant to testify If lawyer knows evidence will be false, try to dissuade client, ask court to withdraw, or testify in narrative, if fails disclose false evidence to tribunal unless confidential
34
Duty to preserve decorum
Lawyer may not communicate ex partner with or gift judge, lawyer may not communicate with jurors during proceedings, seek to to influence jurors or harass jurors
35
Lawyer as witness
Lawyer may not advocate at a trial where lawyer is likely to be a witness unless testimony relates to uncontested issue, nature and value of legal services, substantial hardship on client or lawyer obtained informed written consent
36
Duty of Fairness to opposing party
Lawyer many not engage in dishonest conduct or trick opposing party
37
Duty to not tamper with evidence
Lawyer many not alter, destroy, or hide evidence or witnesses from opposing party
38
Duty to produce incriminating evidence
Lawyer who receives incriminating evidence from client must turn it over, can accommodate conflict w/ duty of confidentiality by refusing to disclose its source
39
Inadvertent disclosure
If lawyer inadvertently receives confidential doc, must stop reading and notify sender
40
Duty to Expedite Litigate
Lawyer must make reasonable efforts to expedite litigate
41
CA Threat Rule
Lawyer must not threaten criminal, administrative or disciplinary charges to gain advantage in civil cases
42
Witnesses
Lawyer may not bribe witnesses, lawyer may provide reasonable expenses, reasonable lost wages, reasonable expert witness fees but compensations cannot be contingent on content of testimony
43
Trial Publicity
Lawyer may state to media re charges, defense, investigation exists, schedule, ask help, warn public danger Lawyer may not make media statement if there is a substantial likelihood it will result in material prejudice
44
Represented third party
Lawyer may not communicate about the matter with other party lawyer knows is represented by counsel, unless their counsel consented and lawyer does not intend to embarrass, delay, or burden third party or unless legally authorizedU
45
Unrepresented third party
Lawyer may communicate with 3rd party only if lawyer does not imply impartiality, explains role if necessary and does not give advice other than to get counsel if lawyer knows clients interest have reasonable chance of being adverse to third party
46
Advertisement
Is generally allowed, false or misleading communication containing material misrepresentation of fact or law are prohibited
47
Advertisement - false or misleading
Nothing that can confuse client, what client might think ad promises or lawyer is implying 1. Violation if communication is delivered to potential client in a time of physical/mental stress or delivered at accident scene, hospital, or healthcare center are presumed to be false and misleading unless lawyer proves otherwise, omitting a necessary fact, stating past result without disclaimer
48
Solicitation
Generally prohibited, lawyer may not seek work for gain by in person, live telephone or real time electronic contract, unless person contacted a lawyer or has family, close personal or prior professional relationship with lawyer
49
Referrals
Lawyer may arrange reciprocal referrals with another lawyer or non lawyer professional if it is not exclusive and lawyer explains to client when making referral
50
Permitted Solicitation
Targeted direct mail, can send non deceptive letters to persons know not face a specific legal problem , contact is a lawyer or has prior relationship with lawyer, pro bono, client initiated call
51

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