Professional Responsibility Flashcards
What are the bases for mandatory withdrawal for an attorney?
Vindictive Health-Nuts Discharge Harassers
(1) Resulting Violation: if failure to do so would result in violating ethics rules or other laws (CA - only ethical rules, not other laws)
(2) Health: when lawyer’s physical or mental condition materially impairs ability to represent the client
(3) Discharge: when client fires the lawyer (can be for any or no reason at all), unless ordered otherwise by the court
(4) (CA only) Harassment: when the lawyer knows or reasonably should know the client is asserting a claim/defense/appeal for the purpose of harassing or maliciously injuring another
What is the duty of loyalty?
A lawyer has a duty of loyalty to his client, which requires him to avoid any conflicts of interest.
What are the ways in which a conflict of interest may arise?
(1) if one client is directly adverse to another in a representation
(2) if there is a **significant risk **that the lawyer’s representation of one client will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by a personal interest of the lawyer
How might a lawyer be able to still represent a client despite a potential conflcit of interest?
Four elements:
(1) The lawyer reasonably believes that he will be able to provide competent and diligent representation
(2) The representation is not prohibited by law
(3) Clients are not asserting a claim against each other in the same litigation (not directly averse)
(4) Each client gives informed written consent
What are the rules for when the other party’s lawyer is a relation?
ABA: A lawyer related to another lawyer (e.g., parent, child, sibling, or spouse) may not represent a client in a matter in which that lawyer is representing another party, unless each client gives informed consent. MR 1.7, cmt. 11.
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 member, 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. CA RPC Rule 1.7(c)(2).
What is a potential conflict between current and former clients?
A lawyer who has previously represented a client in a matter must not subsequently 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 client, unless the former client gives informed consent, confirmed in writing. MR 1.9(a); CA RPC Rule 1.9(a). The California rule specifies “informed written consent.”
What must be kept in mind when accepting payment of fees from a third party?
ABA: A lawyer may not accept payment for representation from someone other than the client, unless:
i) The client gives informed consent;
ii) There is no interference with the lawyer’s professional judgment; and
iii) Lawyer-client confidentiality is preserved.
CA: in addition, a lawyer must obtain a client’s informed written consent.
What are the bases for permissive withdrawal under the ABA model rules?
(1) Client persists in a course of action that the lawyer reasonably believes is criminal or fraudulent
(2) Lawyer learns that the client has used his previous services to perpetrate a crime or fraud
(3) Client fails to substantially fulfill an obligation to the lawyer regarding the lawyer’s services and has been given reasonable warning that the lawyer will withdraw unless the obligation is met
(4) Client has made representation unreasonably difficult for the lawyer
(5) Client insists on a course of action that the lawyer finds repugnant or with which the lawyer has a fundamental disagreement
(6) The representation will result in an unreasonable financial burden on the lawyer
(7) For any reason, so long as there will be no material adverse effect on the client
(8) Other good cause exists
What are the bases for permissive withdrawal under the CA rules?
i) The client insists on presenting a claim or defense not warranted under existing law and which cannot be supported by a good-faith argument for an extension, modification, or reversal of existing law;
ii) The **client either seeks to pursue a criminal or fraudulent course of conduct **or has used the lawyer’s services to advance a course of conduct that the lawyer reasonably believes was a crime or fraud;
iii) The client insists that the lawyer pursue a** course of conduct that is criminal or fraudulent**;
iv) The client, by other conduct,** renders it unreasonably difficult for the lawyer to carry out the representation effectively**;
v) The client breaches a material term of an agreement with or obligation to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation;
vi) The client knowingly and freely assents to termination of the representation;
vii) The inability to work with co-counsel indicates that the best interests of the client likely will be served by withdrawal;
viii) The lawyer’s mental or physical condition renders it difficult for the lawyer to carry out the representation effectively (cf. with required termination standard of unreasonably difficult);
ix) A continuation of the representation is likely to result in a violation of these rules or the SBA; or
x) The lawyer believes in good faith, in a proceeding pending before a tribunal, that the tribunal will find the existence of other good cause for withdrawal.
What are the three categories of potential personal conflicts a lawyer can have with a client?
(1) Lawyer’s personal relationships with opposing lawyer
(2) Lawyer’s personal beliefs
(3) Sexual relations with clients
(4) Business transactions with clients
(5) Gifts from clients
(6) Proprietary interest in the litigation
(7) Financial assistance to clients
(8) Limitations on malpractice liability
What must occur when the opposing lawyer is a relation?
When the lawyers are closely related by blood or marriage, they must obtain informed consent before representing clients in the same or substantially matter.
In CA, this is extended to include situations when: (a) one lawyer is the client of another lawyer; (b) two lawyers cohabitate; (c) two lawyers have a personal intimate relationship
What if a lawyer has a potential conflict with a client due to the lawyer’s own personal beliefs?
The lawyer may still represent the client, with full disclosure and informed written consent. (Provided, of course, that he believes the representation would not be materially limited.)
What are the rules about sexual relations with clients?
ABA: not permitted unless a consensual sexual relationship existed before the lawyer-client relationship began
CA: clarifies that this rule doesn’t apply to the lawyer’s spouse or registered domestic partner
Note: does NOT permit client to waive conflict through informed consent
What are the rules regarding business transactions with clients?
Lawyer must not enter into a business transaction with a client or knowingly acquire any interest adverse to a client, unless:
(1) the terms are fair and reasonable to the client
(2) the terms are fully disclosed in writing to the client in an understandable manner (CA: also requires the lawyer’s role in the transaction be fully disclosed in the writing)
(3) client is advised in writing to seek independent counsel (CA: or the client is actually represented by indpendent counsel)
(4) client gives informed writen consent to the essential terms
What are the rules regarding the solicitation of gifts?
A lawyer shall not solicit any substantial gift from a client or prepare an intstrument that gives the lawyer (or a person related to the lawyer) a gift, unless the lawyer is related to the client.
CA: two additional exceptions when a lawyer may accept a gift:
(a) if the client has been advised by an independent lawyer who has provided a certificate of independent review
(b) the gift is fair and there is no undue influence
What is the rule regarding proprietary interests in clients’ litigation?
A laywer shall not acquire a proprietary interest in the litigation, unless it is to:
(1) acquire a lien to secure the lawyer’s fees; or
(2) contract with a client for a reasonable contingency fee in a civil case
What are the rules regarding financial assistance / advances to clients?
ABA: A lawyer shall not provide financial assistance, except:
(1) to advance court costs and expenses of litigation in contingency cases; or
(2) to advance court costs and expenses of litigation on behalf of indigent clients
(3) (ABA only) for indigent pro bono clients through nonprofit or clinics, may provide modest gifts for food, rent, transportation, medicine, and other basic living expenses
(4) (CA only) lawyer not permitted to directly or indirectly pay personal or business expenses of clients, but can lend money to client for any purpose, if client promises in writing to repay the loan
Can a client agree to limit the lawyer’s malpractice liability?
CA: No. A lawyer is prohibited from making an agreement prospectively limiting malpractice liability to a client. CA RPC Rule 1.8.8(a).
ABA:No, unless the client is represented by another independent lawyer in making the agreement. MR 1.8(h)(1).
What is the duty to communicate?
The lawyer should reasonably consult with the client and keep them informed of the status of the case, including settlement and plea offers; promptly respond to client communications and reasonable requests for information; and promptly inform the client of any decision that affects the client’s informed consent.
May delay transmission of info if might cause imminent harm to client or others.
What is the lawyer’s scope of representation?
The client decides the objectives and goals of the represntation; the lawyer determines how best to achieve those objectives.
In other words, client makes substantive decisions (settle, plea, waive jury trial, expenses, testify, appeal), and the lawyer is responsible for employing the appropriate legal strategy (e.g., motions, discovery, witness or evidence use).
What is the duty of confidentiality?
A laywer shall not reveal information relating to the representation of a client (CA: without the informed cosnent of client), except in certain situations.
This applies not only to confidential client communications, but to all information relating to the representation, regardless of the source (including lawyer observations and third party communications).
A lawyer must take reasonable precautions to safeguard the confidential information of a client, even from inadvertent or unauthorized disclosure by the lawyer or other persons who are participating in the representation of the client or who are subject to the lawyer’s supervision.
Note: CA is extremely strict (more than ABA) re: confidentiality
Under the ABA rules, when may the lawyer reveal confidential info that would otherwise violate the duty of confidentiality?
(1) the client gives informed consent
(2) disclosure is impliedly authorized to represent the client
(3) the lawyer reasonably believes the disclosure is necessary to prevent reasonably certain death or substantial bodily harm
(4) to prevent the client from committing a crime or fraud or to mitigate or rectify a crime or fraud committed by the client that has or will result in substantial injury to the financial interests or property of another and the client is or has used the lawyer’s services to do so
(5) to comply with a court order, ethics rule, or statute
(6) to secure legal advice about the lawyer’s compliance with ethics rules
(7) to establish a claim or defense in a suit / controversy between the lawyer & client
Under CA rules, when may the lawyer reveal confidential info that would otherwise violate the duty of confidentiality?
(1) when necessary to prevent a crime that would cause reasonably certain death or substantial bodily harm **
[note: but must first make a good faith effort to persuade the client not to commit the criminal act, inform the client of the lawyer’s ability to reveal the info, and only reveal as much info as necessary]
[note: this is different from ABA, which does not require the act to be, itself, a crime]
(2) the client gives informed consent
When might the attorney client privilege not apply?
The privilege does not apply if:
(1) Lawyer’s services were used to further crime of fraud
(2) Relates to a dispute between the lawyer and client; or
(3) Two or more parties consult on a matter of common interest and the communication is offered by one against another.
(4) (CA only: Lawyer reasonably believes the disclosure is necessary to prevent a crime that is likely to result in death or substantial bodily harm)
Remember: The privilege is much more narrow than the duty of confidentiality, and applies only when the lawyer or client will be testifying about confidential communications pretaining to legal services.
What factors does the ABA consider in determining whether a fee is reasonable?
(1) Time limitations imposed by the client
(2) Experience, reputation, & ability of lawyer
(3) Nature & length of relationship with the client
(4) Time and labor, novelty and difficulty, and skill required
(5) Fee customarily charged in the locality
(6) LIkelihood that acceptanc e ill preclude other employment
(7) Amount invovled and results obtained; and
(8) Whether the fee is fixed or contingent
What factors does the ABA consider in determining whether a fee is reasonable?
In addition to the ABA factors, California requires that the **fees may not be illegal or unconscionable **based on the following additional factors:
(1) Whether the lawyer engaged in fraud or overreaching
(2) whether the lawyer failed to disclose material facts
(3) sophistication of both lawyer and client
(4) amount of fee in proportion to the value of the services performed
(5) whether client gave informed consent to the fee
What should the fee agreement state?
(1) how the fee is calculated (basis of compensation)
(2) the general nature of the legal services
(3) the responsibilities of lawyer and client
In CA, when is a fee agreement not required to be written?
CA requires all fee agreements over $1,000 to be in writing unless:
i) The client is a corporation;
ii) The client knowingly states in writing, after full disclosure of the right to an agreement in writing, that he does not want a written agreement;
iii) An arrangement regarding the fee is implied by the fact that the lawyer’s services are of the same general kind as previously rendered to and paid for by the client;
iv) The services were rendered in an emergency to avoid foreseeable prejudice to the client; or
v) A writing is otherwise impracticable.
When are contingent fees not permitted?
Attorneys may charge a fee contingent on the outcome of the case.
However, contingent fees are prohibited in criminal cases and in domestic-relations cases when the fee is contingent on obtaining a divorce or on the amount of support recovered. MR 1.5(d); CA RPC Rule 1.5(c).
What is the ABA rule for fee splitting?
Lawyers from different firms may split fees if:
i) The fee is **in proportion to the services rendered **by each lawyer, or all lawyers **assume joint responsibility **for the representation;
ii) The client agrees in writing to the fee-splitting arrangement; and
iii) The total fee charged must be reasonable (i.e., a client is not charged a higher fee because additional lawyers are working on the case).
(lawyers in the same firm can always split)
What is the CA rule for fee splitting?
A fee may not be shared with a lawyer from a different firm unless:
i) The lawyers enter into a written agreement to divide the fee;
ii) The client has consented in writing, either at the time the lawyers enter into the agreement or as soon thereafter as reasonably practicable, after a full written disclosure that fees will be divided by counsel, **including the identity **of the lawyers or law firms that are parties to the division and the terms of the division; and
iii) The **total fee charged is not increased **solely by reason of the agreement to divide fees.
When is fee sharing with another not permitted?
When that person is a non-lawyer.
What are the rules regarding referral fees?
ABA: lawyer shall not give anything of value to a person for recommending the lawyer’s services unless it is a qualified referral service
Also permits a reciprocal referral agreement, provided: (1) it is not exclusive and (2) client is informed of the agreement
CA: permits a gift or gratuity for a past recommendation resulting in employment if the gift was not offered or given as consideration of a promise, agreement, or understanding that the referral would be forthcoming or continue in the future.
What is the duty of competence / care?
ABA: A lawyer shall represent the client with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for representation.
CA: A lawyer must not intentionally, recklessly, with gross negligence, or repreatedly fail to perform legal services with competence (this is a lower standard).
In CA, how can a potentially incompetent lawyer meet their duty of competence?
A lawyer is permitted to:
(1) consult with another competent lawyer;
(2) acquire the necessary skills to become competent before performance is required, or
(3) refer the matter to another competent lawyer.
Duty of Diligence
ABA: A lawyer shall act with reasonable diligence and promptness in representing a client
CA: A lawyer shall not intentionally, repeatedly, recklessly, or with gross negligence fail to act with reasonable diligence in representing a client. The lawyer must act with commitment and dedication to the interests of the client, and must not neglect or disregard, or unduly delay, a legal matter entrusted to him.
What is the difference between advertising and solicitation?
Advertising refers to widely distributed, public statements (such as phone book listings, newspaper or television ads) about the services available from a lawyer or law firm.
Solicitation refers to narrower, targeted communications directed at a small group identified as requiring a specific service (such as letters sent to accident victims, in-person solicitation of employment, real-time electronic contact).
What are the rules regarding trial publicitity (e.g, public statements about a case)?
A lawyer shall not make extrajudicial statements that will be publicly disseminated and have a substantial likelihood of materially prejudicing the proceeding.
A lawyer may state: (1) the claim, offense, or defense involved; (2) information in the public record; (3) that an investigation is in progress; (4) requests for information; (5) warnings of danger; and (6) the status of the accused in a criminal case.
A lawyer may not state:
(1) character, credibility, reputation, or criminal record of a party
(2) possibility of a guilty plea or contents of a confession
(3) opinion as to guilt or innocence of a criminal defendant
(4) informationt he lawyer reasonably knows is likely to be inadmissible
What are the special duties of prosecutors?
(1) Refrain from prosecuting charges that are not supported by probable cause
(2) Make reasonable efforts to ensure the accused is advised of the right to counsel
(3) Make timely disclosure to the defense of all exculpatory evidence
(4) Refrain from making extrajudicial statements that have a substantial likelihood of heightening public condemnation of the accused; and
(5) Seek to remedy wrongful convictions
