professional responsibility Flashcards
Main duties to client “Clients Love Fierce Counsel”
confidentiality, loyalty, financial responsibility, competence
main duties to court, adversaries, legal profession, third parties, public “Courts Feel Differently”
Candor/truthfulness, Fairness, Dignity/Decorum
duty of confidentiality to client
general rule is?
scope- the duty applies __ whether the client has requested it be kept confidential or whether its revelation might harm or embarrass the client. use reasonable __ to prevent inadvertent access to or disclosure of client confidences
timing and disclaimers
distinguish A-C privilege
Don’t reveal “anything related to the representation” of a client or use that information against her w/o her consent
regardless; electronic security
duty of confidentiality can attach before a A-C relationship is formed, or even if none is formed and once attached duty CONTINUES even after representation ends and death!
A-C privilege the overlapping but narrower evidence rule that allows the client to prevent you from testifying about confidential communications from her to you. Confidentiality is broader: it applies regardless of the source of the info, to anything not generally known and to disclosures beyond the rep that could reasonably lead to information about it
exceptions to confidentiality
consent (includes implied consent)
defending yourself (sos exceptions)
if compelled by final court order law or other ethical duties
if the client consents you may reveal otherwise confidential information
your client (i)sues you for malpractice (ii) brings disciplinary actions against you (iii) refuses to pay you forcing you to sue him for your fees. All of these as well as seeking an ethics opinion fall into the exception for revealing information necessary to establish your claim or defense
your duty to uphold the law allows revelations to prevent:
Death or substantial bodily harm- you may reveal what’s necessary to prevent the act if __ (WHAT ARE THE CA REQUIREMENTS?)
fraud or crimes causing financial harm (ABA and CA rules)
you believe it will prevent reasonably certain death or substantial bodily harm. In CA you must first, if reasonable in the circumstances (i)make a good faith effort to persuade your client not to commit the act and (ii)inform C of your decision to reveal his confidences
ABA: If C is using your services to commit the crime and the disclosure would prevent or mitigate substantial financial loss
CA: NO FINANCIAL EXCEPTION
Duty of loyalty to your client: conflicts of interest
black letter law is-
Flag and discuss both potential and actual conflicts- CA strictly requires consent for a potential conflict and an additional disclosure and consent if it ripens to actual conflict
you have a duty of loyalty to C if an interest of another C, yourself or a third party materially limits or is adverse to representation you have a conflict of interest
imputer disqualifications means
exceptions- may still be allowed to take that work with safeguards such as screening the colleague with the conflict behind a “ethical wall” CA doesn’t impute __to colleagues, disqualifies but doesn’t discipline a lawyer for imputed conflicts
remedies?
any group of lawyers that work together closely or share responsibilities share each others’ conflicts
purely personal
refuse to take the case, advise multiple clients to get separate counsel, or withdraw
representation OK:
Maybe OK:
never ok
some facts might suggest conflict but aren’t so just flag and dispose of them
most conflicts may be tolerated if a case by case factual analysis establishes 3 reqs: YOU reasonably believe you can rep everyone effectively, despite the potential or actual conflict (CA DOESNT HAVE TO BE OBJECTIVELY REASONABLE BELIEF); AND you inform each affected client AND cline consents confirmed in writing
PURELY PERSONAL CONFLICTS JUST HAVE TO HAVE WRITTEN DISCLOSURE in CA no consent
a few conflicts are non contestable
conflicts between or among clients
opposite sides in the same proceeding before a tribunal-
opposing a current client in another matter
2 Cs with inconsistent positions
potential conflicts require (2)
new clients in matters related to former clients
*using nonpublic confidential information against a former C is unreasonable w/o consent
you cannot rep opposing parties in the same matter
A representation adverse to a current client in a different matter requires ALL clients’ consent (CA-there is no conflict when a L reps a policyholder and his insurance company as joint clients where the insurer’s interest in each matter is only as an indemnity provider
positions don’t create conflict but if either client would be disadvantaged you must obtain consent
disclosure and consent
if confidential info from a former client might be relevant to a new C matter you may be violating your continuing duty of confidentiality and loyalty to your former C: You cannot take on a new C with interests materially adverse to a former C without former C’s consent
former government lawyer that moves to private practice
rule
imputed d/q
third party neutrals
if you were a government L that worked “personally and substantially” on a matter (specific dispute btw specific people over specific issues) the ABA bars you from working on that same matter in later private practice w/o government consent (regulations aren’t “matters”)
3 ABA conditions must be met: you are screened off; and don’t share any part of the fees; and your former government employer is informed
judges clerks arbitrators and other third party neutrals require consent of all parties
*CA explicitly d/q a prosecutor in a case from later working on the defense side of that case. CA is silent on civil cases but case law allows screening like the ABA
conflict between C and L
gifts to L
limited liability
publication rights
loans to C (ABA and CA)
business transactions or adverse interests “First Discuss Over Coffee”
service on board of directors of non-profits is allowed; on board of a corporate client is ok but discouraged
you must not solicit a substantial gift from a C or draft legal instrument for a C who is not your close relative if it provides a substantial gift to you or your relative
you cannot limit you C’s right to report you for professional misconduct or to cooperate in an investigation. you cannot limit your malpractice liability when you enter into a relationship with your C unless under ABA Rules the C is independently represented in making the agreement *CA BARS MALPRACTICE LIMITS
cannot accept rights before the rep has ended. CA: if the judge is satisfied that the C clearly understands and consents
ABA: forbids all financial assistance except litigation expenses for an indigent client and the advance of litigation expenses in contingent fee cases
CA: forbids promises to pay a prospective C’s debts but allows loans to a C in all matters for any purpose with a written loan agreement
You may enter business with C or obtain an interest adverse to hers if (a) all terms are Fair to C (b)Disclosed in understandable writing (c ) C is advised to consult Outside counsel and (d) Consents in writing
trial counsel as a necessary witness
ABA v CA
close relationship with your adversary’s L (ABA and CA)
ABA: bars you from appearing as L and witness in same trial unless: (i) your testimony is uncontested or (ii) about your legal services or (iii) if your distinctive value to the case means w/drawal would impose substantial hardship to C. If testimony may prejudice C, consent is required and conflict is imputed to colleagues
CA: less restrictive- you may testify in any bench trial and a jury trial if C consents
ABA: cannot oppose a party represented by your relative without C’s consent (immediate family)
CA: explicity recognizes other intimates. As a purely personal conflict it only requires written disclosure CA also requires disclosure of any legal, business or personal relationship with any party or witness
conflicts due to third party interference
general rule
organizational clients
federal laws govern security Ls
Your sole duty is to your C. Payment from third party is permitted only with informed C consent and confidences cannot be shared
L must act in the best interest of the entity even if an officer, ee or other associated person acts to the contrary
you must report the matter to the CEO then go to the highest authority in the company. if you reasonably believe it is necessary to prevent fraud perjury or substantial injury to the org or investors or to rectify financial injury from a violation that involves your services then you MAY disclose confidential info to SEC
financial duties to C
atty fees agreements (ABA and CA)
contingent fees
limits on contingent fees (ABA and CA)
termination before contingency/judgment (ABA and CA)
dispute over fee (ABA and CA)
ABA: must include how the fee is calculated, what services are covered and the L and C duties
CA: also requires agreements in writing unless: the fee is $1000 or less, with a corporate client, for routine services for a regular client or its an emergency or impractical
Contingent fees must be written, signed by C and contain: L’s percent and what expenses will be deducted from the recovery and whether your percent is taken before or after expenses
CA: also requires the agreement to state: how work not covered by the fee will be paid and that the L’s fees are negotiable
ABA: prohibited in domestic relations and criminal cases
CA: rules are silent, allowed in domestic cases if they don’t “promote dissolution” of a savable marriage
ABA: can recover in proportion to the work completed. Fees must be reasonable.
CA: fees MUST NOT BE UNCONSIOUSABLY HIGH
ABA: encourages arbitration
CA: requires L to participate in fee arbitration if C sues and requests it
Fee spliting
lawyers in your firm
lawyers outsider your firm
nonlawyers
partnership with non lawyers
reciprocal referrals with other professionals is OK if NOT exclusive and explain the arrangement to C
generally OK
may split fees only if total fee is ethical and there is written disclosure and C consent. ABA further requires the division to be proportional to the work done by each atty, unless each is jointly responsible for the action
CA: ok if the total fee isn’t unconscionable and C consents
generally not allowed. Exceptions: death benefits to beneficiary, salaries to non-L ‘res and sharing of court-awarded legal fees w/ a non profit org that employed or recommended L
partnership with non-L in providing LEGAL SERVICES is prohibited for any practicing lawyer.
