Professional Responsibility Flashcards
Duty of Loyalty - Conflicts of Interest
A lawyer owes each client a duty of loyalty and must act with the client’s best interest in mind. A lawyer must NOT represent a client if the representation involves a conflict of interest. A conflict exists if: 1) the representation will be directly adverse to another client 2) there is a significant risk that the representation will be materially limited by the lawyer’s responsibilities to another client, a former client, a third person, or by the lawyer’s own personal interests
1) Notwithstanding the existence of a conflict, a lawyer may represent a client if 1) the lawyer reasonably believes that he will be able to provide competent and diligent representation to each affected client and 2) each client gives informed written consent.
Duty of Loyalty - Conflicts of Interest
CALIFORNIA
CALIFORNIA: Does not have a reasonable lawyer standard
Duty of Confidentiality
A lawyer must NOT reveal any information about the client without the client’s consent. The duty of confidentiality applies to all information relating to the representation no matter where it came from and continues to apply even after representation has ended.
1) However, a lawyer may reveal information to the extent the lawyer reasonably believes necessary 1) to prevent certain death or substantial bodily harm 2) to prevent the client from committing a future crime of fraud that is reasonably certain to cause substantial financial loss if the lawyer’s services were used to perpetrate the fraud 3) to establish a claim or defense in a controversy between the lawyer and the client OR 4) to comply with law or court order.
2) Before revealing confidential information, the lawyer should first seek to persuade the client not to commit the act. In revealing confidential information, disclosure should be no greater than the lawyer reasonably believes is necessary to accomplish the purpose. Disclosure is ordinarily a last resort.
Duty of Confidentiality
CALIFORNIA
CALIFORNIA: Does not have an exception for financial crimes.
Lawyer’s Fee Must be Reasonable
A lawyer’s fee must be reasonable. Factors to be considered in determining the reasonableness of a fee include: the time and labor required, the sill needed to perform the service properly, the fee customarily charged in the area, and the experience, and ability of the lawyer. Moreover, the fee must be communicated to the client, preferably in writing
Lawyer’s Fee Must be Reasonable
CALIFORNIA
A lawyer must NOT charge an unconscionable fee and if the total fee will exceed $1000 the contract must be in writing. However, a writing is NOT required when 1) services are rendered in an emergency 2) the client is a corporation OR 3) the attorney has previously rendered similar services to a regular client where there is an implicit understanding.
Duty of Competence
A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In determining whether a lawyer employs the requisite knowledge and skill in a particular matter, relevant factors include: the complexity of the matter, the lawyer’s experience, the lawyer’s preparation and study, and whether it is feasible to associate with a lawyer of established competence.
Fee Splitting
A lawyer may share legal fees with an outside attorney only if: 1) the fee is in proportion to the services performed by each lawyer 2) after full disclosure, the client consent in writing AND 3) the total fee is reasonable.
Fee Splitting
CALIFORNIA
No proportionality rule when two lawyers share a fee but the total fee charged must NOT increase because of the sharing of fees.
Fee Splitting
Non-Lawyer Fee Splitting
As a general rule, a lawyer may NOT share legal fees with a person who is NOT a lawyer. The rationale for the rule is to protect the lawyer’s professional independence of judgment.
Accepting Payment from 3rd Party
A lawyer may accept compensation from a 3rd party only if: 1) the client gives informed consent 2) there is no interference with the lawyer’s professional judgment AND 3) the lawyer protects the client’s confidences.
Accepting Payment from 3rd Party
CALIFORNIA
Requires the lawyer to obtain the client’s informed written consent.
Solicitation (Direct Contact with Prospective Clients)
A lawyer shall NOT initiate direct contact (in person or by phone) with a prospective client when a significant motive for the lawyer’s doing so is pecuniary gain. The rationale is based on the potential for abuse when a lawyer make as direct contact with someone known to need legal services
1) The rules does NOT apply if the person contacted is: 1) a lawyer 2) a former client 3) a close friend OR 4) family member. The reason is because there is far less likelihood that a lawyer would engage in abusive practices with a person whom the person has s close personal relationship.
Solicitation (Direct Contact with Prospective Clients)
CALIFORNIA
It is a presumed violation when a communication is made at the scene of an accident, en route to a hospital, or in an emergency room. Additionally, a lawyer CANNOT use another person (runner or capper) to do something the lawyer herself cannot do.
Duty to Communicate
A lawyer must keep a client reasonably informed about significant developments affecting the representation. Thus, a lawyer has a duty to communicate all important matters to the client e.g. a lawyer must convey all settlement offers and plea bargains to a client.
