Professional Responsibility Flashcards
A lawyer must not represent a client if the representation creates a conflict of interest. A conflict of interest exists when:
- The representation of a client will be directly adverse to the interest of another client; or
- There is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the lawyer’s responsibilities to another client, former client, or third person.
Despite a conflict of interest, a lawyer may undertake a representation if:
- The lawyer reasonably believes that he can competently and diligently represent each affected client,
- The representation is not prohibited by law,
- The representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case pending before a court or other tribunal; and
- each affected client gives informed consent in writing.
General rule of conflicts in law firms:
If a lawyer faces a conflict of interest, no lawyer in that lawyer’s firm may represent the client- the lawyer’s conflict is imputed to all the other lawyers in the firm.
A lawyer must not enter into a business transaction with a client UNLESS:
- The transaction and terms on which the lawyer acquires the interest are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client,
- The client is advised in writing of the desirability of seeking, and is given the chance to seek, the advice of independent legal counsel on the transaction; and
- The client understands the essential terms of the transaction and the lawyer’s role in the transaction and gives informed consent in a signed writing.
Use of information adverse to client
Must not use information relating to the representation of a present or former client to the disadvantage of the client UNLESS the client gives informed consent.
Lawyer as a beneficiary of client
Must not do so unless the client is related to the lawyer.
Lawyer may not provide financial assistance to a client except:
- lawyer may advance court costs and expenses of litigation, repayment of which may be contingent on the outcome of the matter and;
- a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.
* *May not advance money for client living expenses**
A lawyer must not accept compensation from representing a client from someone other than the client unless:
- The client gives informed consent
- There is not interference with the lawyer’s professional judgment or with the lawyer-cline relationship; and
- Information relating to the representation of the client is protected.
May not Aggregate settlement unless:
each client gives informed consent in writing that is signed by each client.
• Lawyer must inform each client of what they are getting
Lawyer may not make an agreement limiting the lawyer’s liability to be sued for malpractice UNLESS:
the client is independently represented in making the agreement.
Lawyer must not settle claim for malpractice liability with an unrepresented client:
must advise them that it would be desirable for them to get another attorney and allow them time to do so.
A lawyer must not enter into a sexual relationship with a client where:
- The representation would be materially limited by the relationship; and
- it is unreasonable for the attorney to believe that he can provide competent and diligent representation.
Representation of new client v. former client
• Representing a new client against a former client is prohibited if it the same or substantially related to the earlier matter.
• Representing a new client against a former client is prohibited if the lawyer has confidential information about the former client relevant to the new case.
o Former client may waive but it must be informed consent and must be in writing.
Conflicts stemming from prospective clients:
May not represent a client with interests adverse to a prospective client in the same or substantially the same matter if the lawyer has received from the prospective client information that could be significantly harmful to the client.
Exceptions to the prospective client rule;
Representation is permissible where either:
- Both affected client and the prospective client have given informed consent, confirmed in writing, or
- The disqualified lawyer is screened from any participation in the matter and is not apportioned any fee therefrom.
