Professional Responsibility Flashcards
What does the Lawyer-Client relationship include?
Duty of Loyalty
Duty to Communicate
Scope of Representation
Duty of Confidentiality
Attorney-Client Privilege
Duty to avoid fee misunderstandings
Duty of Competence
Duty of Dilligence
Duty to safekeep property
Withdrawl
What does Professional Integrity include?
Advertising / Solicitation
Unauthorized Practice of Law
Liability for other lawyer’s misconduct
Duty of Fairness
Reporting Ethical Violations
What are Duty of Fairness issues?
Duty of Fairness
- To represented Parties
- to court
- duty of decorum to the tribunal
- trial publicity rules
- not supress evidence
- special prosecutir duties
What are Duty of Loyalty Issues?
- Conflicts of Interest
- Compensation by 3rd parties
- Client and lawyer’s personal interest
What can create a duty of loyalty violation under a client and lawyer’s personal interest?
- Personal beliefs
- sexual relationships
- business transactions
- gifts/proprietary interest
- financial assistance to clients
- limiting malpractice
What is the duty of competence?
Under the ABA, Lawyers must have legal knowldgem skill, thoroughness, and preparation reasonably necessary to represent the client.
In CA, a lawyer may not intentionally, recklessly, or repeatedly fail to perform legal services with competence. further under the CA rules, competency includes the duty to supervise the work of subirdinate lawyer and non-lawyer employees.
A lawyer may gain competence by
- associating with a lawyer that is competent OR
- acquiring sufficient learning and skill before performance without undue expense or delay
Lawyers may advise or assist a client in a true emergency to a reasonable extent, where it is impracticable to reach a competent lawyer
Rule on Solicitation
Under ABA Model Rules and California law, a lawyer cannot solicit fee-generating employment by
- in-person,
- live telephone, or
- real-time electronic contact
from a specific prospective client when the lawyer’s significant reason for doing so is pecuniary gain, unless the person solicited:
- is a lawyer,
- family,
- or prior professional relationship with the lawyer.
A lawyer must not use agents to solicit in a manner the lawyer cannot solicit him/herself.
What is the duty of communication?
Under ABA Model Rules and California law, a lawyer must:
- keep the client promptly informed of any decision or circumstance to which the client must provide informed consent, and
- reasonably consult with the client about means by which to accomplish client objectives.
What is a duty of confidentiality?
Under ABA Model Rules and California law, a lawyer must not reveal any information relating to the representation of a client.
A lawyer may reveal information
- with informed consent
- impliedly authorized to represent the client
- reasonably believes the disclosre is necessary to prevent
- death
- serious bodily harm
- to prevent a crime/fraud
- comply with court order
- secure legal advice
- establish a claim or defense on behalf of a lawyer against a client
Under the california rules, a lawyer shall not reveal information relating to the representation of a client without the informed consent of the client except
- to prevent a crime that would result in death or substantial bodily harm, but must first
- make good faith effort to dissuade client
- inform client of the lawyer’s ability to reveal the information
- only reveal as much information as necessary to prevent the crime
- comply with a court order
Loyalty - Conflict of Interest
Lawyer may not accept or continue representation of client if
- the representation is directly adverse to another client’s interest
- there is a significant risk that representation of client will be materially limited by the lawyer’s responsibilities to another client or former client or by personal interest of the lawyer
- and in CA - the lawyer has legal, business, financial, professional, or personal relationship with party or witness in same matter
UNLESS lawyer obtains informed, written consent from each affected client and lawyer reasonably believes he can competently and diligently represent each client
Loyalty - Conflicts of Interest - Advancing Money/Loans
Under the ABA, a lawyer cannot provide financial assistance to clients in connection to litigation, except for advancing court cost in contingency cases and for indigent clients.
In CA, a lawyer may lend money to the client after employment, for any purpose, if the client promises in writing to repay the loan
Duty of Loyalty
A lawyer has a duty of loyalty to his client that requires the lawyer to put the interest of his client above all other interests and to avoid any conflicts of interest
A lawyer must avoid all conflicts of interest with his client. A lawyer must avoice current and future conflicts of interest
Exception to concurrent conflicts of interest
A lawyer may still represent the client despite a concurrent conflict if
- the lawyer reasonably believes that te lawyer will be able to provide competent and diligent representation to each affected client without an adverse affect, AND
- the representation is not probinited by law AND
- the clients are not asserting a claim against each other in the same litigation
- each cliend gives informed concent
In CA, exceptions to conflicts of interest include:
- informed written consent for regular conflict
- lawyers reasonable belief is not required
When the conflict arises from a personal conflict written disclosure is enough.
Insurance Special Rule
Lawyers are permitted to represent both insurers and insured whereby the insurer has the contractual right tin unilaterally selevt counsel for the insured, resulting in conflict of interest. This inhereent conflict is waived by statute.
Corporation/Organizational Special Rules
A lawyer employed by an organization or corporation represents the organization and must act in the best interest of the corporation.
- Representation of organizational employees permited if it is waived
- Report misconduct to higher authority if action is likely to result in substantial injury to org UNLESS lawyer reasonably believes that it is not in the best interest of the org to do so
- Under ABA, failure to act by a higher authority then lawyer may report out and reveal information necessaru to prevent harm
- Under CA rules, the lawyer may not report out and siclose info, but may urge higher authority to act OR resigne
- if may cause death may report out
