Professional Responsibility Flashcards
The Duty of Competence *****
requires competent representation
knowledge, skill, thoroughness, and preparation
- how much did you prepare for this case?
- how much expertise do you have in this area
- associate with another lawyer?
- complexity of the matter?
CA: LAWYER MUST NOT INTENTIONALLY, RECKLESSLY, OR REPEATEDLY, fail to perform legal services with competence (generally negligence doesn’t subject to discipline)
Duty of competency
on test:
lawyer practices in one area of law & takes a different case
Can they take on the case?
yes! as long as they become competent
- did they look up the law?
- associate with another lawyer
- prepare
Reasonable fees***
reasonable fees:
-the time and labor required
- difficulty of legal issues
- the fee customarily charged in the area
- experience, reputation and ability of the lawyer
ABA
-preferred in writing
CA RQRD a writing UNLESS -under 1000 -a corporation -regular client -emergency
CA: “unconscionable fee” not rsble fee (aba)
determined at the time of making
** essay tip: if fact pattern tells you what att is getting paid –> discuss the rbleness of the fee
Fee splitting with another attorney ABA
ABA: you may share a legal fee:
- if in proportion of work OR each lawyers take joint responsibility for the representation
- fee must rsble
- client must consent writing
on bar exam if you don’t know if something is rqrd to be in writng
suggest it to be in writing
“the lawyer should put it in writing”
CA v ABA
CA:
- keep your mouth shut
- likes things in writing
Sharing fees with a non attorney
MAY NOT share fees with a non attorney
CA and ABA
Fee splitting with another attorney
CA
CA
- *distrinction** allows referral fees: two lawyers to share a fee.
- client consent in writing
- fully disclose to the client the amount and the other attorney
- agreement between both lawyers must be in writing
no proportionality or joint responsibility std
Payments by a third party
may accept compensation for legal representation from 3rd party if:
- client gives informed consent (no reason he wouldn’t)
- no interference with the lawyer’s judgement
- must protect client’s confidences
Payments by a third party
may accept compensation for legal representation from 3rd party if:
- client gives informed consent (no reason he wouldn’t)
- no interference with the lawyer’s judgement
- must protect client’s confidences
CA: writing
contingency fee agreements
- writing
- must state a % what lawyer’s fee is
- fee must be rsble
- must state what the expenses will be taken from the recovery
- will the expenses be taken before or after the lawyer’s fee is calculated
CA:
above AND:
writing must state the fee is not set by law and is negotiable
cases L CAN NOT enter into a contingency fee agreement
- in a “domestic relations matter” when payment is contingent upon the amount of property to be obtained.
- or divorce case
- in a criminal case
CA:
same as above AND
-percentage is negotiable
-other work (superfluous)
Retainer
pay lawyer money to ensure they are available
non refundable
duty of dilligence and zeal
be prompt/ no undue delay
treat others with respect
must zealously represent all lawful and ethical measures required to support a client’s position is fully supported
Duty to communicate
return phone calls.
keep client reasonably informed of any significant developments in the case
-all settlement offers/plea bargains
Scope of representation
generally lawyer must abide by C’s decision concerning the scope of representation
- whether or not have jury trial
- settlement
- plea bargain
- whether or not C should testify
lawyer makes procedural decisions (evidence, motions, objections etc
in a criminal case. putting client on stand who has history of committing crimes…
subjects them to impeachment on those crimes!! now those crimes come in!!!
(evidence)
counseling the client to break the law
can’t encourage crime
can’t tell him how to break law and get away with it
YOU CAN make a good faith effort to test the VALIDITY of the law (think: CON law- can suggest to break law to have standing to test the validity of the law)
essay tip: if you can’t remember the name of a rule, use the facts as the heading
example “flowers” heading for arrangement of flowers delivered “compliments of jones and smith attorneys at law”
ESSAY TIP: when a lawyer associates with another lawyer to help handle a matter…
- fee sharing agreements
- duty of competence
Duty of Confidentiality**
a lawyer may not reveal ANY information relating to the representation without the client’s consent
applies to all information relating to representation no matter where it came from and continues to apply even after representation has ended
Duty of Confidentiality EXCEPTIONS***
a lawyer MAY (not rqrd) reveal confid. info. to the extent that the L rsbly believes is necessary:
- to establish a claim or defense in a controvery between the L and the C
- to prevent death or serious bodily harm
- if L’s services were used to perpetrate the fraud–> to prevent the client from committing a future crime/fraud that is reasonably certain to cause substantial financial loss OR to enable the victims of the fraud to mitigate their losses
- to comply with a court order or ethical rule (i.e. when FALSE evidence has been introduced [this is a MUST disclose]
what to do when revealing confidential information
- first seek to persuade the C not to commit the act and inform the C of the L’s ability to reveal such info
- the disclosure should be NO GREATER than nec to accomplish the purpose
- disclosure is ordinarily a last resort
Example: L offered evidence in the belief it was true. L subsequently came to know evidence was false. C won’t cooperate in correcting the situation. withdrawal will not undo the effect of false evidence… then…
the lawyer MUST disclose to the court enough information to remedy the situation
ESSAY TIP: the duty to remedy false evidence…
and CA distinction
one exception that TRUMPS the duty of confidentiality
remedial measures must not involve revealing confidential information. Unlike ABA, CA doesN’T force a L to disclose confid info when taking remedial measures
Duty of confidentiality exception for preventing future crimes resulting in substantial financial loss
-must have been using L’s services to commit a crime
- the crime would LIKELY cause others to suffer a SUBSTANTIAL financial loss
–>
L can disclose ENOUGH information about the fraud to:
-prevent the crime
-Or to enable the affected persons to MITIGATE their losses
*for this exception to apply the fraud must be ongoing.
A lawyer has no right to report a past completed criminal act
CA distinction:
THERE IS NO EXCEPTION FOR FINANCIAL CRIMES. a L is PROHIBITED from revealing such information
Inadvertent disclosure
PARTY OF DUTY OF CONFIDENTIALITY
a L must make rsble efforts to prevent the inadvertent disclosure of confidential information
Joint-client exception
att/client privilege doesn’t attach between JOINTLY REPRESENETED CLIENTS
Attorney Client Privilege ABA v CA
ABA: privilege lasts indefinitely
CA: terminates when all claims against the C’s estate are settled
duty of confidentiality when the client is a corporation
an L represents the corporation
If a L knows that person associated w/ the corporation is engaged in an illegal act that is likely to result in SUBSTANTIAL INJURY to the organization
–>
the L must proceed in the best interests of the organization
generally that means referring the matter to a higher authority (board of directors is highest)
ABA
if the highest authority that can act on behalf of the corp. fails to act –> L MAY report the violation outside the corp
CA:
PROHIBITS outside reporting (except death/bodily harm)
L’s role when dealing w/ an employee of a corporation
L must explain that L represents the corp.
therefore communications may not be privileged
once L learns that the corp’s interests are adverse to the employee’s the lawyer should advise employee that she can’t represent him and he should get own attorney
Duty of Loyalty***
must act with each C’s best interests
see also conflicts of interest
appears in almost every essay. therfore expect some type of COI
Conflict of interest
Because L must act w/ C’s best interests in mind a lawyer may not represent a client if the representation involves a conflict of interest