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
a conflict of interest exists if:
- the representation of one client will be directly adverse to another client
- there is a SIGNIFICANT RISK that the representation will be MATERIALLY LIMITED by the L’s responsibilities to another C, a former C, a 3rd person, or L’s own interests
question: likelihood that A DIFFERENCE IN INTERESTS will arise and interfere with L’s judgement
even if a COI, the L may represent the C if:
- the L REASONABLY believes that she will be able to provide competent, dilligent representation to each affected C
AND
-each C gives informed consent, IN WRITING
thus,
REPRESENTATION IS PROHIBITED IF, a “rsble L” would conclude that competent representation can’t be provided. IOW- if the disinterested L would advise the C not to consent, then the conflict is “unconstentable”
CA distinction: INFORMED WRITTEN CONSENT
in CA, if attorney has any type of personal relationship with someone on opposing side –>
only has to provide written disclosure to client
send an email
ESSAY TIP:
when discussing COI
assume everything has to be in writing
(espec in CA)
and is permitted only after getting C’s informed written consent
if one client decides that material representation should be kept from another C –>
the L must withdraw
b.c. equal duty of loyalty to each client.
dual representation
COI
Serving on a board of directors
a L MAY serve as a member of a board for an organization that he represents.
hwever, do the responsbilities of the two roles conflict?
if there is a MATERIAL RISK that the dual role will compromise the lawyer’s indep. professional judgement, the L shouldn’t serve as director
duties to former clients
if C’s interests are MATERIALLY ADVERSE to the interests of a former C–> an L can’t represent C in a SUBSTANTIALLY RELATED MATTER
UNLESS
former C gives informed written consent
also
a L may NOT use any confid info learned during the representation to the disadvantage of a former C
using information to the disadv of the client
L may NOT use any confid info learned during the representation to the disadvantage of a C
unless
C gives informed consent
generally, ^^ applies when confid information is used to benefit the L or a third party
EXAMPLE: C tells L that he intends to purchase/develop several parcels of land. L recommends to another C to purchase one of the parcels
this would be using information to the disadvantage of the first C
violates duty of loyalty
Sex with a client
a lawyer for a corp
may NOT have sex with person who supervises the L concerning the co. legal matters
if no relationship prior to the representation?
then not allowed
sexual relationship prior to the representation?
then allowed however:
- L should consider whether there may be a potential conflict w/ lawyers own personal interests
- there are competency concerns because judgement impairment
enter a business transaction with a client
or
acquire an ownership interest adverse to a client if:
- the terms are:
-fair and rsble
-fully disclosed in a writing
-written in a manner that can be understood by the C - the C is advised to seek the advice of independent legal counsel
AND - the C gives informed consent in a signed writing
enter a business transaction with a client
or
acquire an ownership interest adverse to a client when:
a lawyer accepts an interest in the C’s business
obtains a lien on real property owned by the C
makes a loan to the C
or accepts property as payment
this rule doesn’t apply to standard commercial transactions btwn L and C for products/services that the C GENERALLY MARKETS TO OTHERS
EXAMPLE: a manufacturer called a L’s brokerage business and said “if you find a buyer for my excess inventory i’ll pay you a generous comission”
allowed
Manufacturer is a merchant who is familiar with these types of transactions
manufacturer dictated terms of the agreement
(therefore no possibility f over-reaching on L’s part)
therfore
L is NOT required to advise the manufacturer to seek independent legal counsel or get the manufacturer’s informed written consent
because those rqrmts are unnecessary and impracticable on these facts
ESSAY TIP:
in every situation where L is acting AGAINST the C’s best interests–>
C’s informed written consent is needed
All these require “consent” by the client
- fee splitting
- accepting payment from a third party
- disclosing confid information
- COI
- using information to disadvantage of a C or former C
entering into a business transaction with a C - conflicts with former govt. employees
financial assistance to a client ABA
a L may NOT provide financial assistance to a client EXCEPT
- advancing costs of litigation - repayment of which may be contingent on the outcome
or
a L may pay costs and expenses to an indigent C regardless of whether the funds will be paid back
a L may NOT agree to pay LIVING expenses
rationale: would encourage C’s to pursue lawsuits
and
gives L too great a financial stake in the litigation
financial assistance to a client CA
similar to ABA except!!!
a lawyer MAY lend money to a C FOR ANY REASON so long as C promises IN WRITING to repay the loan
EXAMPLE: a lawyer orally agreed to advance an indigent C’s LITIGATION EXPENSES and to lend the C 1,000/mo for living expenses
L’s agreement to pay litigation expenses=proper
living expenses?
ABA= improper b.c. can’t loan for living expenses
CA= improper b.c. agreement to loan money was oral
Acquiring a Proprietary interest in litigation
a L shall not acquire an “ownership” interest in the subject matter of the litigation EXCEPT:
- L may acquire a LIEN authorized by law to secure the lawyer’s fee
and
- enter into a contigent fee agreement in a civil case
Agreements prospectively limiting malpractice liability
not allowed unless
C is independently represented in making the agreement
iow: a L can’t obtain advance consent to “incompetent” representation
CA: not allowed in any circumstance
Conflicts for former govt lawyers
unless govt gives informed written consent
L can’t represent a C in connection w/ a matter which the L participated PERSONALLY AND SUBSTANTIALLY while working for the govt.
can another L in a firm take C’s case when L is disqualified from representation because L (formerly govt L) participated personally and substantially in a matter connected to the representation of C
no lawyer in the firm may undertake representation UNLESS:
- L is screened off the case
- shares no part in the fee
- written notice is given to the govt.
safekeeping property and client trust acounts
no comingling of funds
including any unearned legal fees that have been paid in advance by the C
fees may only be withdrawn as they are earned
property must be held separately from L’s own property
if there is a dispute over funds
the disputed amount must be kept in the C trust account until resolved
a lawyer MUST withdraw from representation if:
-the representation will result in a violation of ethical rules
-the C demands that the L engage in conduct that is illegal
or
- the L is fired
c’s mere suggestion to break ethics/law –> L is not OBLIGED to withdraw
a lawyer MAY withdraw if:
- withdrawal can be accomplished w/o material adverse effect on the C
- the C has used the L’s services to commit a crime or fraud
- the client insists upon taking action that the L considers repugnant or with which teh L has a fundamental disagreement
or - teh representation will result in an unreasonable financial burden on the L
adverse impact on C if:
- statute of limitations is about to run
- trial in a few days
- deadlines fast approaching
L must return any unearned fees
Meritorious Claims
L may not bring frivolous claim
L required to inform himself about the facts of the case and determine whether he can make a credible argument in support of his C’s position
L may make a good faith argument for modification or reversal of existing law (even if L believes C will ultimately fail)
fairness to opposing party and counsel
L can’t make a frivolous discovery request or fail to make a rsbly diligent effort to comply with a proper discovery request
threats to obtain an advantage in a civil case
a L must not threaten to bring criminal or disciplinary charges in order to obtain an advantage in a civil dispute
expediting litigation
L must make rsble efforts to expedite litigation
and
may not needlessly prolong the proceeding
improper for a L to routinely seek delay or fail to expedite litigation SOLELY for the purpose of frustrating a party’s case
question: whether a competent lawyer acting in “good faith” has some purpose other than delay
C told L he was tired of opposing party setting the case’s pace. therefore he wasn’t going to appear at the next deposition and get his doctor to write him a note. L did nothing in response
because C had improper motive
this is a bad faith delay
therefore attorney breached duty to expedite
difference between duty to expediate and duty of dilligence
expedite: violated when a L is attempting to prolong the case for no good reason
(applicable when L is dealing with opposing counsel)
dilligence: breached when L fails to act promptly in representing a client
extrajudicial statements
trial publicity
a L who is involved in teh case may not make an out of court statemetn that the L knows will be WIDELY DISSEMINATED and have a SUBSTANTIAL LIKELIHOOD of MATERIALLY PREJUDICING the trial
criminal trials are most sensitive to this speech
a lawyer may not state:
- criminal record of a party
-identity of a witness
-existence of a confession or D’s refusal to make a statement
and
- any opinion as to the guilt or innocence of a person
lawyer MAY
make a responsive statement to protect a client from the prejudicial effect of any recent publicity
lawyer MAY state:
-claim/offense involved
- that investigation is in progress
-request for assistance in obtaining evidence
and
-info necessary to aid in the apprehension of the accused
EXAMPLE: a D was arrested for burglary. Prosecutor saw a press release that police chief was planning to issue to the media stating that teh D had been arrested for burglary by a detective who is known for his ability to apprehend guilty criminals
Prosecutor should exercise rsble care to prevent police chief from releasing the statement because it will have a substantial likelihood of seriously prejudicing the criminal trial
Prosecutor’s duty to exercise rsble care over others
the prosecutor in a criminal case must exercise rsble care to prevent those “associated with” the prosecution (investigators, law enforcement) from making any statement that the prosecutor would be prohibited from making.
probable cause requirement
prosecutor in a criminal case must refrain from prosecuting -or continuing to prosecute- a charge that teh prosecturo knows is not supported by probable cause
probable cause
present when there are “sufficiently strong facts” to make a rsbly prudent person believe that a crime has been committed and that the D was the one who committed the crime
Exculpatory evidence
evidence that tends to negate teh guilt of the accused
or
mitigates the offense
suppression by prosecution of evidence “favorable” to the accused violates DUE PROCESS if the evidence is material either to guilt or punishment
a lawyer may not request that a person refrain from giving relevant info to another party unless:
1- person is a relative or employee of a C
and
2. that person’s interests will not be adversly affected by refraining to give such information
a lawyer may testify if :
acting as both a L and a W in the same case
- the L’s testimony relates to an uncontested matter
- the L’s testimony related to the nature and value of legal services rendered in the case
- disqualification would work a SUBSTANTIAL hardship on the client (ABA model rule 3.7)
- at trial, L may not assert personal knowledge of any fact in issue
EXAMPLE: an expert testified that a certain type of roof lasts five years. During closing, Defense counsel said that his own inspection of the roof confirmed the expert’s testimony
Defense counsel would be subject to discipline for asserting personal knowledge of a fact in issue
a lawyer MAY refuse to offer evidence that
the L REASONABLY BELIEVES is false
however
a L should resolve all doubts about the veracity of the evidence in favor of the client
if a L KNOWS that a C intends to testify falsely –>
L should seek to persuade C that evidence shouldn’t be offered
if persuasion is ineffective the L MUST REFUSE to offer the false testimony
as a last resort, the L may seek withdrawal of statement
if that doesn’t cure the harm then tell the court
offering false evidence CA v ABA
CA
a L may NOT prevent a crim D from testifying. if L knows D intends to testify falsely –> persuade D not to testify –> if not, then L may offer the testimony in “narrative” form
ABA
the lawyer must REFUSE to offer false testimony
ex parte communications
means the other party is not present
a one-sided conversation w/ judge/jury
a L may not communicate ex parte with a judge or juror during the proceeding about the merits of the case
remedial measures once lawyer has offered evidence and later comes to know of its falsity
MUST take remedial measures
- speak w/ client and explain L’s ethical obligations (candor to the court). Seek C’s cooperation in correcting the false evidence
- L may ask permission to withdraw evidence
- if that doesn’t cure the harm then lawyer MUST DISCLOSE enough info to remedy the situation (even if reveal confid info)
CA: may NOT reveal confid information
Communication w/ a person represented by counsel
a L may not communicate w/ a person the L KNOWS to be represented in the matter
UNLESS
the L has the consent of opposing counsel
rule applies even if the represented person initiates or consents to the communication
Communication w/ an organization represented by counsel
a lawyer may not communicate with an employee who:
-has the authority to bind the corporation
or
- whose statements may be imputed to the corporation
UNLESS
the L obtains consent of opposing counsel
**this rule doesn’t apply to former employees
documents sent out inadvertently
notify sender
may not use the document to advantage
may not read document more closely than nec to establish whether its privileged
Truthfulness in statements to others
a L must not knowingly make a false statement to a 3rd party
misleading statements or omissions are equivalent of false statements
employing a disbarred attorney
CA: must five notice to the state bar as well as to each client on whose case the disbarred L will work
no counterpart in aba
