Professional Responsibility Flashcards
Duty of Confidentiality
A lawyer must not reveal information relating to the representation of a client. The duty of confidentiality continues to apply even after the attorney-client relationship has terminated.
Under the ABA rules, a lawyer may disclose information relating to the representation of a client to prevent the client from committing a crime or fraud that is likely to cause substantial financial loss to a person, if the client is using or has used the lawyer’s services to commit the crime or fraud. California does not recognize this exception.
Organization Representation
A lawyer who represents an organization must act in the best interest of the organization. If the lawyer learns facts that would cause a reasonable lawyer to conclude that someone associated with the organization is engaged in action, intends to act, ore fuses to act in a matter related to the representation that is a violation of the legal obligation to the organization, or violation of law may be imputed to the organization, and if the violation is likely to result in substantial injury to the organization, the lawyer should report to a higher authority in the organization. If the highest authority fails to take action, the lawyer may report the information to appropriate persons outside the organization. The California rules do not authorize outside reporting.
Duty of Loyalty / Conflict of Interest
A lawyer owes her client a duty of loyalty and must avoid conflicts of interest. Generally, a lawyer must not represent a client where there is a significant risk that the representation will be materially limited by the lawyer’s personal interests or by the lawyer’s duties to another client, former client, or third person. Under the ABA rules, a lawyer may still undertake the representation if: (i) the lawyer reasonably believes that she can competently and diligently represent each affected client despite the conflict, (ii) the representation is not prohibited by law, (iii) the representation does not involve asserting a claim by one client against another client represented by the lawyer in the same proceeding, and (iv) each affected clients gives consent in writing. In California, both the disclosure and the consent must be in writing.
Under California rules, if a lawyer has a personal, legal, business, financial, or professional relationship with a party or witness in the client’s matter, the lawyer must provide written disclosure to the client even if there is no significant risk that the relationship would materially limit the representation.
Conflict of Interest Regarding Former Client
A lawyer who formerly represented a client in a matter may not thereafter represent another person in the same or a substantially related matter If that person’s interests are materially adverse to those of the former client, unless the former client gives informed consent in writing. Two matters are substantially related if they involved the same transaction or legal dispute, or if there is a substantial risk that confidential factual information would materially advance the client’s position.
Government Employees
A lawyer must not represent a client in connection with a matter in which the lawyer participated personally and substantially as a government officer or employee, unless the government gives written consent. Matter means a specific set of facts involving specific parties.
If a former government lawyer is disqualified from a matter, the lawyers in the firm may handle the matter if all of the following conditions are met: (i) the disqualified lawyer is screened from any participation in the matter, (ii) the disqualified lawyer does not share any part of the fee, and (iii) the government is notified.
Compensation from Third Parties
Under the ABA rules, a lawyer must not accept compensation for representing a client from someone other than the client unless: (i) the client gives informed consent, (ii) there is no interference with the lawyer’s independence of professional judgment or with the lawyer-client relationship, and (iii) information related to the representation of a client remains confidential. California requires the consent to be in writing.
Fee Agreement
California requires a written fee agreement if the free will exceed $1000, unless the client is a corporation, the client states in writing that she does not want a written fee agreement, the legal services are the same kind of services that the client has previously received and paid for, the lawyer acted in an emergency, or writing is impractical for other reasons.
Under the ABA rules, a lawyer must not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for the client.
Under the ABA rules, an attorney’s fee must be reasonable. Many factors are considered in determining the reasonableness of a fee, including: the time and labor require, the novelty and difficulty of the questions involved, the skill required to perform the legal service, and the experience, ability, and reputation of the attorney. In California, there may not be unconscionable fees.
A lawyer may not share fees with a nonlawyer.
Settlement
A lawyer must not settle a claim or potential claim for malpractice liability with a client without advising that person in writing that independent counsel is desirable.
Duty of Competence
The ABA rules provide that a lawyer must act competently; that is, with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation. In California, a lawyer is subject to discipline if she intentionally, recklessly, with gross negligence, or repeatedly fails to perform legal services with competence.
Reporting Ethical Violations
Under the ABA rules, a lawyer who knows that another lawyer has committed a violation of the rules that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer must inform the appropriate professional authority. There is no corresponding rule in California.
Financial Assistance to Client
The ABA rules prohibit a lawyer from providing financial assistance to a client in connection with pending or contemplated litigation, except that (i) a lawyer may advance court costs and expenses of litigation and (ii) a lawyer representation an indigent client may pay the client’s court costs and expenses outright.
The California rule is more detailed. It applies in all contexts, not just litigation. It prohibits a lawyer from buying a potential client with a promise to pay debts. It also provides that, after a lawyer is hired, she may lend the client money for any purpose if the client gives her a written promise to repay the loan.
Duty to Supervise
A lawyer may delegate tasks to a nonlawyer, but must supervise the delegated work and must be ultimately responsible for the results. A lawyer must make reasonably efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer.
A lawyer must not assist a person who is not a member of the bar in performance of an activity that constitutes the unauthorized practice of law.
Duty to Third Parties
A lawyer must not counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent. A lawyer must not engage in conduct involving dishonesty, fraud, or deceit.
Business Transaction
A lawyer must not enter into a business transaction with a client or acquire a pecuniary interest adverse to the client unless: (i) the terms are fair to the client, (ii) the terms are fully disclosed and transmitted in writing to the client in a manner that can be reasonably understood by the client, (iii) the client is informed in writing to seek independent legal counsel, and (iv) the client gives informed consent signed in writing.
Advertising
Lawyer advertising is permissible as long as it is not false or misleading.
