Professional Responsibility Flashcards
When will an attorney have a conflict of interest?
(1) The representation is directly adverse to another current client; or
(2) There is a significant risk that representation will be materially limited by (i) a relationship with a current or former client; (ii) a personal interest; or (iii) a third party.
What duties are owed to clients?
(1) Confidentiality
(2) Loyalty
(3) Financial Responsibilities
(4) Competence
(5) Other Reasonable Things
What duties may be owed to nonclients?
(1) Candor/Truthfulness
(2) Fairness
(3) Dignity/Decorum
(4) Other Reasonable Things
To whom, other than one’s client, may a duty be owed?
(1) The Court
(2) Adversaries (Parties and Counsel)
(3) The Legal Professional Generally
(4) Third Parties
(5) The Public
Conflicts Analysis: Three Possible Outcomes
(1) Never Okay–The conflict is non-consentable and always prohibited.
(2) Maybe Okay–Must conduct a case by case factual analysis
(3) Okay–Even if facts suggest a conflict, may fall outside of the rules or into an exception.
How to conduct a case-by-case factual analysis regarding a potential conflict?
Conflict likey tolerated if three elements can be established:
(1) You reasonably believe you can represent everyone effectively despite the conflict;
(2) You inform each affected client; and
(3) The client consents and it is confirmed in writing.
(In CA, disclosure and consent must be in writing.)
Types of Conflicts Between or Among Clients
and Outcomes
(1) Representing opposite sides in the same proceeding before a tribunal (never allowed);
(2) Opposing a current client in a different matter (directly adverse, informed consent required);
(3) Representing two clients with inconsistent positions (permissible);
(4) Representing multiple clients in the same matter (poses risk of representation being materially limited, should withdraw from both);
(5) Representing new client in same or substantially related matter where interests are materially adverse to former client (must obtain informed consent from former client);
(6) Moving from government to private practice (depends on the situation).
How to analyse a scenario where a former government lawyer moves to private practice?
(1) Gov. lawyer who worked personally and substantially on a matter cannot work on same matter in private practice without gov. consent.
(2) Imputed disqualification requires separate analysis.
(3) Attorney acted as third-party neutral in gov. and moved to private practice, requires consent of all parties.
Imputed Disqualification Analysis for Government Attorneys Who Switch to Private Practice
Other members of new firm may still work on matter that the lawyer worked personally and substantially if
(1) Gov. lawyer screened off;
(2) Gov. lawyer does not share in fee; and
(3) Former gov. employer informed.
Rule for Soliciting Gifts
Must not solicit substantial gift from client or draft instrument for non-relative if instrument provides substantial gift to lawyer or lawyer’s relative.
Rule for Limiting Attorney Liability
Cannot limit right to report misconduct (ever) or malpractice liability (ABA–unless independently represented in agreement)
Rule for Using Client Confidential Information
Cannot use to client’s disadvantage.
Rule for Doing Business with Client
Okay if
(1) terms are fair to client;
(2) terms disclosed in understandable writing;
(3) client is advised to consult outside lawyer;
(4) informed written consent
Rule for Contracting for Publication Rights
ABA, must wait until representation has ended; CA, okay if judge satisfied client understands and consents;
Rule for Loaning Money to Clients
(6) Loaning money–ABA, forbidden except in contingency fee scenario; CA, okay if written loan agreement;
