Professional Responsibility Flashcards
Concurrent conflicts of interest
A concurrent conflict of interest exists if (i) the representation of one client will be directly adverse to another client, or (ii) there is a significant risk that the representation of a client will be materially limited by the lawyer’s responsibilities to another client, a former client, or a third person, or by the personal interests of the lawyer.
Imputed conflicts
When lawyers are associated in a firm, none of them may knowingly represent a client when any one of them practicing alone would be prohibited from doing so by the Rules, unless the affected clients consent after consultation.
Client information
The Rules provide that a lawyer must not use information relating to the representation of a client to the advantage of the lawyer or third person or to the disadvantage of the client, unless the client consents.
Waiver of concurrent conflict
The Rules provide that even if a concurrent conflict of interest exists, it can be waived if the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client, and each affected client consents after consultation.
Representing a client with interests adverse to a former client
Under the Rules of Professional Conduct, a lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter if that person’s interests are materially adverse to those of the former client, unless both the present and former clients consent after consultation.
Limitations on representation after waiver of concurrent conflict regarding information gained during representation
A lawyer or firm who has formerly represented a client in a matter may not (i) use information relating to or gained in the course of the representation to the disadvantage of the former client, or (ii) reveal information relating to the representation.
Duty to preserve confidential information
The duty to preserve confidential information continues after the attorney-client relationship has terminated.
Problems when attorney serves as a member of a Board of Directors
An attorney may serve as a member of the board of directors of a corporation. However, a conflict of interest may arise when the attorney represents the board as a corporation and also represents a member of its labor force, such as an officer or director, because the interests of the corporation may, at some point, diverge from the interests of the officer or director.
Corporate misconduct
The Rules provide that a lawyer is to proceed in the best interest of the corporation when an officer of the corporation has engaged in conduct that is a violation of a legal obligation to the corporation or a violation of the law that might be imputed to the corporation and is likely to result in substantial injury to the corporation.
Competence
Under the Virginia Rules of Professional Conduct, a lawyer acts competently when he acts with the legal knowledge, skill, and preparation reasonably necessary for the representation. The Rules do not prohibit a lawyer who has little or no experience in a particular area of law from undertaking the representation of a client in that area. However, the lawyer must put in the time and study necessary to become competent and/or consult with counsel competent in that area.
Keeping client reasonably informed
Under the Rules, a lawyer must keep a client reasonably informed about the status of a matter and explain a matter to the client to the extent necessary for the client to make an informed decision.
Improper conduct
Under the Rules, a layer must not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness to practice law.
Falsifying evidence
The Rules provide that a lawyer must not falsify evidence or offer false evidence.
A lawyer may not knowingly make a false statement of fact or law to a tribunal.
Return of files
Under the Rules, when a client so requests, a lawyer must return, within a reasonable time, original documents furnished by the client. Also, upon request and within a reasonable time, the lawyer must make a copy of other documents to which the client is entitled (e.g., pleadings, research material). The lawyer must do so even if the client owes the lawyer money; a lawyer is not entitled to hold case files hostage to compel payment of fees. Alternative means can be employed to secure the payment of fees owed to a lawyer.
The only file materials that an attorney can refuse to turn over are billing records and documents intended only for internal use, such as memoranda discussing conflicts of interest, staffing considerations, and difficulties arising from the attorney-client relationship.
Reporting obligation
The Rules provide that a lawyer having reliable information that another lawyer has committed a violation of the Rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness to practice law must inform the appropriate authority. If the information is protected by the Rules, the attorney must first obtain the client’s consent after consultation.
Unrepresented persons
The Rules permit a lawyer to communicate with an underrepresented person directly; however, when dealing with the unrepresented person, the lawyer may not state or imply that she is disinterested.
When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.
Unrepresented “control group” persons
The Rules forbid a lawyer who is representing a party with a claim or potential claim against an organization from communicating with persons in the organization’s “control group” or persons who may be regarded as the corporation’s alter ego.
Under the “control group” test, employees who have authority to bind the organization because of their status or position may be contacted only with consent of the organization’s counsel, through formal discovery.
A lawyer must not give advice to an unrepresented person, other than the advice to secure counsel, if the interests of such person are or have a reasonable possibility of being in conflict with the interest of the client.
Restrictions on practice
According to the Rules, a lawyer must not participate in offering or making an agreement in which a broad restriction on the lawyer’s right to practice is part of the settlement of a controversy, except where such restriction is approved by a tribunal or a governmental entity.
If approved, need to disclose to all future clients affected and refer them to other counsel, if necessary.
Withdrawal and RPC violations
Generally, a lawyer must withdraw if representation will result in violation of the RPC. Withdrawal is allowed if a client insists on pursuing an objective that a lawyer considers repugnant or imprudent, or if the representation would result in an unreasonable financial burden on the lawyer.
Withdrawal
If client fires attorney or enumerated circumstances present to justify withdrawal, a lawyer must then comply with applicable law requiring notice to or permission of a tribunal when terminating representation.
Upon permission for the termination of representation, the attorney must take steps to the extent reasonably practicable to protect his client’s interests, such as giving reasonable notice to his client, allowing time for employment of another counsel, surrendering papers and property to which the client is entitled, and refunding any advance payment of fees or expenses that has not been earned or incurred.
Settlement and decisions during the representation
Under the Rules, a lawyer must not take any independent action on behalf of his client without consultation, except as is impliedly authorized to carry out the representation. Decisions affecting the merits of the case or substantially prejudicing the client’s rights may be made only by the client.
An example of such a decision to be made by the client is the decision to accept a settlement offer. The lawyer is limited to deciding questions of strategy, procedure, or trial tactics. Also, a lawyer must not intentionally prejudice or damage a client. A lawyer must keep his client reasonably informed about the status of the matter, and he must inform his client of facts pertinent to the matter and of communications from another party that may significantly affect settlement or resolution.
Failure to do any of the above would violate the basic foundation of the legal representation—the duty of loyalty to the client.
Representation in current concurrent conflicts
The rule regarding concurrent conflicts of interest states that a lawyer cannot, under any circumstances, represent one client in asserting a claim against another client represented by the lawyer in the same case pending before a court or tribunal.
Also, a lawyer cannot represent a client where there is a concurrent conflict of interest and the lawyer does not reasonably believe that he will be able to provide competent and diligent representation to each affected client.
Payment upon discharge of an attorney
The discharge of an attorney is not considered a breach of contract due to the peculiar lawyer-client relationship upon which the contract rests. However, the attorney is entitled to recover on a basis of quantum meruit the reasonable value of his services rendered until his discharge. Recovery may be limited in situations when the attorney’s employ was unjustly terminated.
Attorney should provide notice to new attorney of claim of a lien and the grounds for the lien.
Business transactions with clients
A lawyer must not enter into a business transaction with a client unless: (i) the terms of the transaction are fully disclosed in writing and fair and reasonable to the client; (ii) the client is given an opportunity to seek the advice of independent counsel; and (iii) the client consents in writing.
When may an attorney represent a client in spite of a concurrent conflict of interest
Despite a concurrent conflict of interest, a lawyer may represent a client if: (i) the lawyer reasonably believes that he can competently and diligently represent the affected client, (ii) the representation is not prohibited by law, (iii) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation, and (iv) the affected client gives informed written consent.
Frivolous claims
Under the Rules, a lawyer may not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.
Threats
The Rules prohibit a lawyer from presenting or threatening to present criminal or disciplinary charges solely to obtain an advantage in a civil matter.
Supervising nonlegal personnel
The Rules require the lawyer to exercise independent and competent judgment in handling his client’s affairs. As such, she must personally check the legal document drawn up by nonlegal personnel to verify to whether it conformed to what a client wants.
Prospective clients
When a prospective client reveals to a lawyer information that could be significantly harmful to that client, the lawyer cannot represent another client with interests materially adverse to the prospective client in the same or substantially related matter.
An attorney in a firm with information from a prospective client must be screened from the matter and written notice of the screening must be promptly given to the prospective client.
Advertising
A lawyer may not make false or misleading communications about his other services. An attorney may not make statements implying that the outcome of a particular legal matter was not or will not be related to its facts or merits; comparing the lawyer’s services with other lawyers’ services, unless the comparison can be factually substantiated; or create an unjustified expectation about the results the lawyer can achieve.
Including an amount of recovery from a prior case is misleading or deceptive without a disclaimer that results are not indicative of all cases and are related to facts and merits of a particular case.
A statement in the form of a quotation from a client does not absolve attorneys of responsibility.
When client wants to commit a crime
The Rules require an attorney to counsel her client that the action she proposes would constitute a crime, to advise her to withdraw from her plan and to inform her that the attorney must report the plan unless she withdraws. If the client refuses to withdraw from the criminal plan, then the attorney has an ethical obligation to report the plan to law enforcement. Further, the Rules permit an attorney to withdraw from further representation if the client persists in her plan.
The Rules prohibit a lawyer from assisting clients in conduct the lawyer knows is criminal or fraudulent. In addition, the Rules require an attorney to inform the client of the limitations that the Rules impose on his or her ability to do what the client has asked.
Solicitations
The Rules do not prohibit in-person solicitations by lawyers. However, solicitations that involve coercion, duress, compulsion or unwarranted promises of benefits are prohibited.
