Professional Responsibility Flashcards
When might the duty of loyalty and independent professional judgment be compromised?
Under both the ABA Model Rules and the California Rules of Professional Conduct, a conflict of interest arises when there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or the* interests of another current or former client*.
When might a lawyer undertake representation notwithstanding a potential conflict of interest?
Under both the MR and CA RPC, a lawyer may undertake representation if: (i) the lawyer reasonably believes that she can competently and diligently represent each affected client, **(ii) **it is not prohibited by law, (iii) it does not involve the assertion of a claim by one client against another client who is represented by the lawyer in same case or other proceeding before the tribunal, and (iv) each affected client gives informed consent, confirmed in writing (MR) or informed written consent (CA).
in California, even when there is not a significant risk that the lawyer’s representation of a client will be materially limited, a lawyer is not permitted to represent a client in a matter in which the lawyer knows or reasonably should know that another party’s lawyer is a spouse, parent, child, or sibling of the lawyer, lives with the lawyer, is a client of the lawyer, or has an intimate personal relationship with the lawyer, unless the lawyer provides written disclosure of the relationship to the client.
What are some improper purposes / aims of representation?
Under the MR, a claim brought merely to embarrass, delay, or burden a third person violates the rules.
Under the CA RPC, a lawyer shall not bring or continue an action, conduct a defense, assert a position in litigation, or take an appeal, without probable cause and for the purpose of harassing or maliciously injuring any person.
California lawyers arealso specifically prohibited from, and subject to discipline for, threatening to bring criminal, administrative, or disciplinary charges in an effort to obtain an advantage in a civil dispute.
What is the duty of diligence?
Under the MR, a lawyer must act with reasonable diligence and promptness in representing a client. The lawyer must be dedicated and committed to the interests of the client despite obstruction or inconvenience to the lawyer. The lawyer is not bound, however, to press for every possible advantage that might be realized for a client. The lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or prohibit treating all persons involved in the legal process with courtesy and respect.
Under the CA RPC, a lawyer must not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client. “Reasonable diligence” means that a lawyer acts with commitment and dedication to the interests of the client and does not neglect or disregard, or unduly delay a legal matter entrusted to the lawyer.
