Professional Responsibility Flashcards
Duty of Confidentiality
Same in ABA and CA. Cannot reveal anything related to the representation of a client or use that information against the client without their consent.
Exception to Duty of Confidentiality- General
Consent, defending yourself, conflicts check.
Exception to Duty of Confidentiality-Death or Bodily Harm
ABA: reveal what is necessary to prevent an act that will prevent reasonably certain death or substantial bodily harm.
CA: Only applies to criminal acts.
Exception to Duty of Confidentiality-Financial Crimes
ABA: future crimes if client has used or is using your services to commit the crime, and disclosure would prevent or mitigate substantial financial harm
CA: NOT PERMITTED
Duty of Loyalty - General
Prevents conflicts of interest - which you will have if representation is directly adverse or if there is significant risk that your rep will be materially limited by your relationship to another client (past or current) or third person
Duty of Loyalty - Consent
ABA: requires lawyer’s reasonable belief that he can rep, client’s informed consent, and lawyer to commit consent to writing
CA: lawyer and client must consent in writing
Duty of Loyalty - Former govt officials
if you worked personally and substantially, government must consent.
Duty of Loyalty- Malpractice liability
ABA: lawyer can limit malpractice liability if client has independent representation.
CA: cannot limit it
Duty of Loyalty - Business Transactions
Only permitted if fair to client, disclosed in understandable writing, client is advised to consult an outside lawyer, and client consents in writing
Duty of Loyalty-Client Loans
ABA: not permitted, except for indigent clients and advancing litigation expenses
CA: permitted for any purpose with written agreement
Duty of Loyalty - Can Lawyer serve as Trial Witness?
Not generally permitted. But ok if testimony is uncontested or about your legal services.
ABA: permitted if lawyer has distinctive value and withdrawal would cause hardship
CA: permitted with client consent
Duty of Loyalty - Sex with Clients
ABA: not permitted unless relationship predated representation
CA: exception if married or domestic partners
Duty of Loyalty: Third Party Payments
Only permitted with informed client consent. No exception to confidentiality.
Duty of Loyalty - Organizational Client
Lawyer must act in best interest of entity.
Whistleblower rules: required to report securities violations to CEO/CLO. Permitted to break confi if reasonably believe necessary to prevent fraud, perjury or substantial injury to the entity or its investors, or to rectify financial injury
CA: more permissive, but federal securities laws preempt it
Financial Duties - No Contingency Fee
Requires agreement, show how fee is calculated, what services are covered, and the lawyer and client duties.
CA requires writing if fee is >1,000 - unless corp client, emergency, or impractical
Financial Duties - Contingency Fee
Must be in writing, signed by client, and show percentage of fee, whether fee is gross or net of expenses.
CA: also must say lawyer fees are negotiable and explain how work outside of the fee will be charged.
Financial Duties - Amount of Fees
ABA: must be reasonable, considering all factors
CA: must not be unconscionably high
Financial Duties - Trust Accounts
Must safeguard client property by labeling and storing in a safe place.
Cannot borrow or commingle client funds with personal money. Must use interest bearing account. For small amounts, can commingle client funds and interest is payable to state bar for services to poor.
Duty of Competence - ALWAYS THROW IN
ABA: must render competent services, using legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation
CA: recognizes mental, emotional, and physical ability
Duty of Competence - Breaches
Potential for discipline by bar, disqualification in litigated matter, and civil malpractice liability
Duty of Diligence
Must be diligent and promptly pursue your case to completion
Duty to Communicate
Must keep client reasonably informed, answer client communications, and inform of settlement offers and significant developments
Scope of Representation
Client makes substantive decisions. Lawyers make decisions on legal strategy
Mandatory Withdrawl
Fired, or continuing would violate law or ethical rule
CA: Adds if client acts without probable cause and to harass or maliciously injure another
Permissive Withdrawal
Convince the court there is good cause, including:
- unreasonable burden to lawyer, but won’t harm client
- persisting in criminal or fraudulent course
- client fails to fulfill obligation to lawyer after reasonable warning
Process for Withdrawal
Must notify client and promptly return all unspent fees and expense advances plus all of their property and material papers.
Duty of Candor - Advertising - General
ABA: Don’t mislead or omit material information.
CA: Expressly prohibits this. Also presumes any ad is improper if it contains guarantees, warranties or predictions of a result. Need express disclaimers if testimonials/endoresements
Duty of Candor - Advertising - Legal Specialities
Four Es. Experience Examination Education Evaluations
Solicitation
Cannot initiate live or phone contact with specific person that you don’t know - ambulance chaser protection
Duty of Candor and Fairness - General
Cannot engage in conduct involving dishonesty, fraud, or misrepresentation.
Duty of Candor and Fairness - Presentation issues
Must not make a false statement of material fact, or offer material evidence, you know is false to a tribunal. Must also correct any such errors.
Duty of Candor and Fairness - Perjury issues
Civil: must refuse to call a witness if he intends to perjure himself.
ABA Criminal: 5th amendment right prevents that. But if you know they intend to perjure themselves, you must try to convince them to tell the truth - if that fails, try to withdraw - if that fails, tell the judge.
CA: Permit client to testify in narrative - but you can’t help them perjure
Duty to Produce Evidence
Must not suppress evidence or obstruct or tamper with fruits/instrumentalities of a crime
If you touch/move evidence, you will have to testify about it. If you don’t, you can’t be compelled to do so.
Duty of Prosecutors
Must disclose evidence favorable to defense. Exceeds Brady obligation. Prosecutors have a duty to seek justice - not just win cases
Duty to State Law Truthfully
Subject to discipline if you knowingly make a false statement of law or present frivolous claims or defenses
Duty to Uphold Law - General
Must withdraw if continuing would require you to commit or assist in committing a crime.
Duty to Uphold Law - Preventing Crime
ABA: permits breaking confi if you reasonably believe your continued assistance is likely to contribute to a crime that would cause reasonably certain death, bodily harm, or client’s crime or fraud would create substantial financial loss and your services aided that.
CA: permits above with respect to crimes causing death/bodily harm but only after trying to coach them to do the right thing. Does not permit you to break confi to prevent financial crimes.
Duty of Fair Dealing - General
Do not harass or discriminate based on protected class characteristics. Do not extort.
Duty of Fair Dealing - Material from Opposition
ABA: promptly notify opposing counsel if you receive it inadvertently.
CA: if you know info is privileged, must stop reading
Duty of Fair Dealing - Represented Entities
Cannot communicate with a party that is represented by counsel, unless authorized by law or giving second opinion
Applies to employee of an organization.
CA: requires consent for interviews of an officer, director or managing agent of an entity.
Dealing with Press
Duty not to interfere with a defendant’s right to a fair trial. Avoid out of court statements you reasonably believe have a substantial likelihood of material prejudice.
Duty to Preserve the Decorum and Impartiality of the Tribunal
Don’t try for improper influence. No chicanery
Duty to Expedite Cases
ABA: affirmative duty to expedite
CA: must not delay to harass an adversary or for your personal gain or convenience
