Professional Responsibility Flashcards
Duty to Client - Loyalty
A L owes his C a duty of loyalty and must avoid any actual or potential conflicts of interest. Here, the possible conflicts of interest are…
Duty of Loyalty - Conflict Between Clients and Attorney: Sexual Relationship
Under ABA, a L may not have a sexual relationship with his C with the exception of those relationships that predate the AC relationship.
In CA, it is allowed so long as 1) the L is not conditioning representation upon a sexual relationship, 2) using it to exert coercion or undue influence, or 3) if it will affect a L’s ability to represent a C competently. Here,
Duty of Loyalty - Conflict Between Clients and Attorney: Gifts
A L may accept a gift from a C if the gift mets general standards of fairness. Here,
Duty of Loyalty - Conflict Between Clients and Attorney: Interest/Stake in Outcome of Litigation
A L must not have a proprietary interest in the cause of action or subject matter of the litigation. Being paid in stock is okay assuming its a reasonable amount under the circumstances. Serving on a board is discouraged, but not prohibited. Here,
Duty of Loyalty - Conflict Between Clients and Attorney: Business Transactions
A L must not enter into a business transaction with a client or knowingly acquire an ownership interest adverse to a client unless its 1) fair to client, 2) fully disclosed in writing, 3) the client has an opportunity to discuss with outside counsel, and 4) the client gives written consent (First Discuss Over Coffee)
Duty of Loyalty - Conflict Between Clients and Attorney: 3rd Party Payments
L can accept compensation from a 3P to represent a C only if 1) the client(s) give informed consent (CA requires written informed consent), 2) the payment does not interfere with L’s professional judgment, and 3) C information remains confidential. Here,
Duty of Loyalty - Concurrent Conflict with Other Clients - Multiple Clients in Same Matter
A L may represent multiple clients in the same matter if he reasonably believes he can competently and diligently represent all parties despite the conflict, AND each affected client gives informed consent in writing. Here,
Duty of Loyalty - Concurrent Conflict with Other Clients - Former Government Lawyer
A L cannot work on a matter if the L worked personally or substantially on the same matter while working for the Government. Researching and drafting legislation does not constitute a “matter” for purposes of this conflict rule. Here,
Duty of Loyalty - Concurrent Conflict with Other Clients - Former Client
L has a continuing obligation to preserve information gained in confidence during the representation of a former client. Thus, L must not oppose a former C in any matter in which the confidential information would be relevant unless the former C gives informed written consent.
In CA, it is only permissible if C gives written consent after full disclosure of the conflict. Here,
Duty of Loyalty - Concurrent Conflict with Other Clients - Concurrent Adverse Interests
A L cannot represent one C if doing so would be directly adverse to the interest of another client or former client (CA exception for insurance co). However, a L may represent two clients with conflicting positions if the L feels he can 1) reasonably do so (reasonable L standard), and 2) each affected C is informed, and 3) each C consents in writing.
In CA, the reasonable lawyer standard is substituted for a subjective standard, and Cs must simply be informed in writing. Here,
Duty of Loyalty - Imputed Disqualification
Imputed disqualification occurs when an entire firm is barred from representing a client because one or more of its Ls are personally disqualified from representing that client due to a conflict of interest. Failure to withdraw can lead to sanctions for the firm.
In CA, the firm will not be sanctioned, but will be told to withdraw from the case. Here,
Duty of Loyalty - Imputed Disqualification - Ethical Screen
In certain situations, a complete disqualification of the law firm can be avoided by 1) screening off the L from that matter 2) notifying the client AND giving periodic certifications of compliance, and 3) ensuring the L does not share in fees. Here,
Duty of Loyalty - Corporations as Client
A L representing an organization must protect the interest of the organization. If a person associated with the organization advocates an action that may cause the corporation substantial injury, the L must report the action to a higher authority in the organization if necessary, to the outside Board members. If the highest authority does not take action, then the L must inform someone outside of the organization to protect the interests of the company. Here,
CA rules prohibit the disclosure to an outsider unless it is necessary to prevent a criminal act that will cause death or substantial bodily injury. In certain circumstances, such as SEC violations, Federal Law will preempt this rule. Here,
Duty of Loyalty - Conflicts Raised by Liability Insurance
If a L for an insurance company contacts the insured to talk about a potential settlement, the L must disclose that he represents the insurance company if the insured objects to the settlement.
In CA, they are considered joint clients. Here,
Duty of Loyalty - Withdrawal - Permissive
A L may choose to withdraw by showing the court 1) good cause and 2) doing so would not cause undue delay or disruption. Good cause includes a C acting illegally, a repugnant matter, a client failing to pay, or representation would cause an unreasonable financial burden. L must give timely notice and promptly return unspent fees and client documents. Here,
Duty of Loyalty - Withdrawal - Mandatory
A L must withdraw if representation would result in a violation of the law or ethical rules, or if L is not competent to represent C because of a physical or mental impairment. L must give timely notice and promptly return unspent fees and client documents. Here,
In CA, the L must withdraw if: 1) L knows or should have known that C is acting without probable cause and to harass or maliciously injure another person or 2) if representation will result in the violation of an ethical rule. Here,
Duty of Loyalty - Duties after Withdrawal
An attorney who withdraws from a matter must 1) take reasonable steps to protect the C’s interest 2) give the client reasonable notice of withdrawal, and 3) return all material papers and property to C. Here,
Duty to Client - Confidentiality
A L must not reveal information relating to the representation of a C without C’s consent. This duty can attach before the L/C relationship officially forms and continues indefinitely. (CA until a client’s estate is settled). Generally, CA tends to have stricter confidentiality standards than the national standard. However, there are a number of exceptions where a L will be excused from his duty of confidentiality. Here,
Duty of Confidentiality - Exception: Consent
L may reveal confidential information with the consent of C. Here,
Duty of Confidentiality - Exception: Death or Serious Bodily Injury
L may reveal confidential information that the L reasonably believes is necessary to prevent a person’s reasonably certain death or substantial bodily harm.
CA, L is allowed, but not required to disclose confidential information to prevent death or serious bodily harm. Here,
Duty of Confidentiality - Exception: Financial Harm/Fraud
L may disclose information to prevent or rectify financial harm or fraud IF the L’s services were used to commit the harm.
CA, no such exception.
Duty of Confidentiality - Exception: Malpractice Defense
Under the ABA and CA rules, a L may disclose otherwise confidential information if disclosure is necessary to defend against a malpractice suit or otherwise protect the L. Here,
Duty of Confidentiality - Exception: Compelled by Court, Ethics, or Law
Yes, ABA
CA, only compelled by law or court.
Duty of Confidentiality - Exception: To Collect Attorney Fees
ABA and CA yes
Duty of Confidentiality - Exception: Legal Ethics Advice
L may reveal confidential information for the purpose of seeking ethics advice or self-reporting a violation of ethics rules.
CA, not available.
Duty to Client - Attorney Client Privilege (only raise if there is an actual breach of Duty of Confidentiality)
The AC is an evidentiary privilege that prohibits a court from compelling the revelation of confidential communications between a L and C. Under ABA, the AC privilege survives the death of the C.
CA, the AC privilege terminates when deceased C’s estate settles. Here,
Attorney Client Privilege - Exception: Future Crime/Fraud
Under ABA and CA, the ACP does not apply if the C seeks the L’s services to enable or aid anyone committing a future crime or fraud. Further, CA law makes the ACP inapplicable if the L reasonably believes that disclosure of confidence is necessary to prevent the C from committing a crime that is likely to result in death or substantial bodily harm. Here,
Attorney Client Privilege - Exception: Past Fraud Involving L’s Services
L’s past involvement in inadvertently assisting the C to defraud a 3P allows “noisy withdrawal” under the Model rules. However, CA is silent with regards to this behavior. CA does not allow for disclosure, nor do they provide for a “noisy withdrawal”. Here,
