Professional Responsibility Flashcards
Duties to Client
- Duty of Loyalty
- Duty to Communicate
- Duty of Confidentiality
- Duty to Avoid Fee Misunderstandings
- Duty of Competence/Care
- Duty of Diligence
- Duty to Safeguard Property
What is the duty of loyalty?
Attorney must avoid conflicts of interest and put client interests above all else.
How may conflicts of interest arise?
- Between current clients
- Between current client and another:
“Significant risk that representation of client will be materially limited by lawyer’s responsibilities to another client, former client, third party, or personal interests.”
What is the exception to conflict of interest?
- Reasonably believes he can provide competent and diligent representation without adverse effect,
- Not prohibited by law,
- Clients aren’t asserting claims against each other in same litigation, and
- Informed written consent from each client.
CA Distinction
When must a lawyer disclose in writing to his client potential conflicts, even if no risk of adverse representation?
- If attorney knows that any lawyer in his firm has relationship with party or witness
- If attorney knows/should know that opposing counsel is related to, lives with, is a client of, or in a relationship with the attorney.
NOTE: even with no-risk limitation, the attorney must still meet the normal exception requirements..
CA Distinction
Insurance
Lawyer can represent BOTH insurer and insured, as CA statute deems no conflict.
What is the general rule regarding corporate clients?
Lawyer must act in the best interest of the corporation (not the directors).
Can a lawyer represent directors/employees of a corporation?
Yes, if the conflict exception requirements are otherwise met.
Is a lawyer required to report misconduct of a corporation? Are there any exceptions?
Yes, if the misconduct is likely to result in SUBSTANTIAL INJURY to corporation.
However, they are not required to report if they reasonably believe it’s not in the corporation’s best interest.
CA Distinction
If a corporation fails to act after the attorney reports the misconduct, what can the lawyer do (ABA vs. CA)?
ABA - Lawyer may reveal information if necessary to prevent injury.
CA - May NOT report outside of corporation, except to prevent bodily harm/death. The lawyer should resign.
What is the rule regarding aggregate plea agreements/settlements?
A lawyer cannot represent multiple clients in an aggregate plea/settlement, unless each client gives written informed consent.
If the lawyer used to be a government employee, what’s the rule?
Cannot represent a client in a matter in which they personally and substantially participated as a gov’t employee, unless the agency gives informed written consent.
What’s the general conflict rule regarding attorneys in the same firm? Any exceptions?
The conflict of one attorney is imputed to all other attorneys in firm unless:
- Conflict is based on PERSONAL INTEREST, and no significant risk of materially limiting representation.
- Conflict is from a FORMER CLIENT at DIFFERENT FIRM, and ETHICAL WALL put up. WRITTEN NOTICE is required to client. (NOTE: CA requires that lawyer must not have SUBSTANTIALLY participated).
- Conflict is WAIVED by clients with INFORMED WRITTEN CONSENT.
If a lawyer leaves the firm, can the firm represent a client with adverse interests of a former client of the departed lawyer?
Yes, unless:
- Matter is substantially the same, or
- Any remaining lawyer has confidential information material to the matter.
What are the rules regarding lawyers and 3rd party compensation?
Lawyer cannot accept $ from 3rd party to represent a client unless client gives informed consent (writing required in CA).
What are the rules regarding personal conflicts and beliefs?
- Lawyer’s relative - Informed consent needed if opposing counsel is related by BLOOD or MARRIAGE.
- Personal Belief - Informed written consent needed.
CA Distinction
What are the rules for lawyers that have some relationship with opposing counsel?
Written disclosure required for:
- One lawyer is client of other lawyer
- Two lawyers cohabitate
- Two lawyers are intimate
What is the rule regarding sexual relationships with clients?
No sex unless consensual relationship occurred before became client.
CA distinction: Okay for spouse/domestic partner
What is the rule regarding business relationships with clients (+CA distinctions)?
Lawyer shall not enter business relationship with client, or obtain adverse interest to client unless:
- Terms are fair
- Terms disclosed in writing (CA also requires lawyer’s role disclosed)
- Client advised in writing to seek independent counsel (CA requires actual representation)
- Written informed consent from client.
Solicitation of gifts (+CA distinction)
Gifts cannot be solicited if SUBSTANTIAL. A lawyer cannot prepare an instrument (e.g., will) to receive a gift from a client unless client is RELATED.
CA - Lawyer may accept gift if client is (1) advised by another lawyer that gift is fair and without undue influence and (2) provides certificate of such
Can a lawyer obtain a proprietary interest in litigation?
No, except (1) to secure attorney fees through a lien, or (2) contingency fees in civil case.
Can a lawyer provide financial assistance to a client? (ABA vs. CA)
ABA - No financial assistance for LITIGATION, except:
- Contingency cases
- Indigency cases
CA - No financial assistance GENERALLY (personal/business), except:
- Loan after being hired (with promise to repay)
- Contingency
- Indigency
Can a lawyer limit malpractice liability? (ABA vs. CA)
ABA - Not unless client is advised of it or has independent counsel to advise him.
CA- No, period.
Can a lawyer settle a malpractice claim against him with a former client?
Yes, but only if:
- Advised in writing to seek counsel.
- Given opportunity to seek counsel.
What is a lawyer’s duty to communicate with the client? (ABA vs. CA)
Must promptly inform client of any decision that affects informed consent, including status of case.
CA - Lawyer can delay information to client if it would cause IMMINENT HARM.
What is the scope of a lawyer’s representation?
- Client is responsible for substantive decisions.
2. Lawyer is responsible for legal strategy.
Duty of Confidentiality and Exceptions (ABA vs. CA)
Shall not reveal client info, except:
ABA
1. Informed consent
2. Impliedly authorized to represent client
3. Prevent death or substantial bodily injury
4. Prevent/mitigate crime that has/will result in substantial injury to $ or property AND client used lawyer’s services to do it
5. Court order
6. Secure legal advice re: ethics
7. Establish claim/defense in fight with client
CA 1. Informed Consent 2. Prevent crime of injury/death IF: A. Make good faith effort to persuade them not to B. Inform client of ability to reveal info C. Reveal only as much as necessary 3. Court Order 4. Claim/Defense in fight with client
In order to reveal confidential info of client to prevent injury or death in CA, what must a lawyer do first?
- Make good faith effort to persuade them not to
- Inform them of ability to reveal
- Reveal only as much as necessary