Professional Responsibility Flashcards
Duty of Loyalty
The duty of loyalty prevents an attorney from undertaking a representation which is directly adverse to an existing client, even if it is on a matter wholly unrelated to the existing representation. A lawyer must avoid conflicts of interest.
Consent to Concurrent Conflicts of Interest
Under the ABA Model Rules, a lawyer can represent clients with concurrent conflicts only if certain conditions are met: 1) the lawyer reasonably believes she can competently and diligently represent each client; 2) the representation is not prohibited by law; 3) the representation does not involve the assertion of a claim by one client against another; 4) each client gives informed, written consent. The California rule differs in three respects: 1) it does not contain a reasonable lawyer standard; 2) it applies to potential as well as actual concurrent conflicts; 3) it requires written disclosure, not informed written consent, where the conflict arises out of the lawyer’s prior relationships or personal interests.
Compensation from Other Party
Under the ABA Model Rules, a lawyer must not accept compensation from someone other than the client unless the client gives informed consent, there is no interference with the attorney’s representation, and information relating to the representation of the client is protected. California requires the consent to be in writing.
Duty of Competence and Care
A lawyer must handle a legal matter with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
Duty of Confidentiality
Under the ABA Model Rules, a lawyer must not reveal information relating to the representation of a client, and must make reasonable efforts to prevent the inadvertent or unauthorized disclosure of or access to such information. The confidentiality requirement applies even if the information is acquired before or after the relationship existed.
ABA EXCEPTIONS: 1) client gives informed consent; 2) implied authorization via representation; 3) lawyer reasonably believes disclosure is necessary to prevent reasonably certain death/substantial bodily harm; 4) necessary to prevent the client from committing a crime/fraud likely to cause substantial financial loss AND lawyer’s services have been used to do so; 5) disclosure is legally required; 6) fee collection/lawyer protection; 7) lawyer obtains legal/ethical advice; 8) detect/resolve COI arising from lawyer’s employment AND disclosure doesn’t compromise A/CPv or prejudice the client.
CA EXCEPTIONS to oath of confidence/secrets: 1) compelled by law/court; 2) fee collection; 3) lawyer defense; 4) necessary to prevent a CRIMINAL act that will cause death or substantial bodily injury.
DUTY TO AVOID FALSE OR MISLEADING ADVERTISEMENTS
ABA Model Rules discipline any type of lawyer communication about the lawyer’s services that are false or misleading. In CA, communications that are delivered to a potential client in a time of physical or mental stress, or that are delivered at an accident scene, hospital/healthcare center are presumed to be false/misleading unless the lawyer can prove otherwise.
FINANCIAL ASSISTANCE TO CLIENT IN LITIGATION
The ABA Code and Model Rules prohibit rendering financial assistance to a client for contemplated/pending litigation except for advance payment of court costs and litigation expenses. CA permits client loans provided the client promises to repay the lawyer.
DUTY TO NOT IMPROPERLY SOLICIT CLIENTS
A lawyer must not seek fee-paying work by initiating personal, live telephone, or real-time electronic contact with a specific person who is not a lawyer and with whom the lawyer has no personal, family, or prior professional connection.
TARGETED DIRECT-MAIL SOLICITATIONS
Absent actual knowledge that the person does not wish to receive communications from the lawyer, a lawyer may send truthful, non-deceptive letters to persons known to face a specific legal problem.
LIMITS ON ADVERTISING
Mailings that seek fee-paying work must be clearly labeled as advertisements; letter and envelope must contain the phrase “Advertising Materials.”
DUTY TO AVOID THE UNAUTHORIZED PRACTICE OF LAW
A lawyer is subject to discipline for assisting a non-lawyer to engage in the unauthorized practice of law, defined as actions that call for the professional judgement of a lawyer.
