Professional Responsibility Flashcards
Duty of Confidentiality
Lawyers owe a duty to clients to keep silent confidential INFORMATION acquired by the attorney during the course of representation.
Can begin before actual representation starts, and continues indefinitely.
Attorney/Client Privilege
Allows a client to refuse to testify AND prevent the attorney from testifying in court about confidential COMMUNICATIONS.
Narrower than Duty of Confidentiality; protects communication but not all documentation (if discoverable normally, no protection).
Exceptions to Duty of Confidentiality
Consent: Client consents after consultation. You have implied consent to reveal what’s nec to render your legal services.
Crimes: Can reveal if (1) client is using or has used your services to commit the crime or (2) you reas believe disclosure is nec to prevent reas certain death or substantial bodily harm. CA: In CA, if reasonable under the circumstances, you must make a good faith effort to persuade client not to commit the act and inform the client of your decision to reveal his confidences.
Compelled: Compelled by ct order, laws, ethical duties.
Defending yourself: Can reveal what is nec to establish a personal claim or defense against client.
Duty of Loyalty
Attorneys have a duty of loyalty to their client. If a concurrent interest of the attorney, another client, or a third party materially limits or is directly adverse to loyal representation, there is a potential or actual conflict of interest.
CANNOT ACCEPT REPRESENTATION UNLESS (ICER):
- Informed each prospective client
- Consent from each client
- Effective representation is possible
- Reasonable in the attorney’s eyes
Imputed Disqualification
All members of a firm are treated as possessing the same conflicts (exceptions are gov’t and personal conflicts, which can be cured by walling off).
Conflicts of Interest between Attorney and Client
Attorney required to avoid obtaining an interest in their own case. Can be found through:
- Business Transactions
- Publication Rights contracts
- Loans to clients during representation
- Limiting liability for malpractice
- Using confidential information for personal gain
- Gifts from clients
- Close relationship with opposing counsel
- Necessary witness to court proceedings
Conflicts of Interest between Clients
If a potential conflict of interest, representation is allowed if consent from all parties is obtained, but actual conflicts are not allowed.
Actual Conflict
An Attorney shall not represent a client whose interests are directly adverse to a current client.
Potential Conflict
An Attorney may accept representation of a client who has a potential conflict with a current client if (RAD):
- attorney REASONABLY believes there will be…
- no ADVERSE affect on representation…
- and DISCLOSURE is consented to in writing.
Conflicts of Interest with Third Parties
A lawyer can only accept a 3rd Party payment for services if:
1) in writing, 2) there is no interference with the lawyers independent professional judgment, and 3) there is no breach of the Duty of Confidentiality.
Fiduciary Duties
Lawyers owe a duty to there clients to both
1) agree to FEES that are not “unconscionably high” (CA) / are “reasonable under the circumstances” (ABA); and
2) safeguard the client’s property.
Duty of Competence and Other Client Duties Owed
A lawyer owes a duty to represent with competence and diligence, to communicate to the client, and other act reasonably during representation.
Mandatory Withdrawal
A lawyer MUST withdraw their services if:
- representation would violate a law or ethical rule, or
- the attorney is fired.
Permissive Withdrawal
A lawyer MAY withdraw their services if:
-court is convinced of Good Cause, or F.A.I.R.:
Financial Burden
Acts are Illegal
Insists on “repugnant” course of action, or
Refuses to fulfill obligation
Duty of Candor to the Courts
A lawyer must not KNOWINGLY
1) make or fail to correct a false statement of material law or fact;
2) fail to disclose directly adverse legal authority; or
3) offer false evidence.
