Professional Responsibility COPY Flashcards
Attorney Duties to the Client
Confidentiality
Loyalty
Financial Responsibility
Competence
CLIENTS LOVE FIERCE COUNSEL
Attorney’s Duties to Court, Adversaries, Legal Profession, Third Parties
- Candor/Truthfulness
- Fairness
- Dignity/Decorum
“COURTS FEEL DIFFERENTLY”
Duty of Confidentiality
Definition/Scope/Timing
Attorneys are porhibited from using or revealing anything related to the representation of the client without her consent.
Scope: applies to all info learned through involvement with client/matter.
Timing: duty can attach before an A/C relationship is formed and the duty lasts indefinitely.
Exceptions to the Duty of Confidentiality
Consent: express or implied
Crimes: death or serious bodily injury, fraud.
* No fraud exception in CA.
Atty Defense: may reveal client confidence to establish a claim or defense in a malpractice action, action for recovery of fees, or disciplinary action
If compelled by law or final court order.
Attorney-Client Privilege
Narrow testimonial privilege that enables the client to refuse to testify and prevent her attorney from testifying regarding confidential communications between them or their agents.
Scope: Applies only to confid communications made during AC relationship; prohibits disclosures that could lead to the discovery of harmful information.
ABA Model Rule Exceptions to A/C Privilege
- Future Crime/Fraud
- Civil litigation between two former joint clients
- Evidence re: client competency for purposes of will or inter vivos transfer
California Exception to A/C Privilege
The disclosure must be to prevent a criminal act that is likely to result in death or substantial bodily harm.
- However, prior to disclosure, the lawyer must make a good faith effort to persuade the client not to commit crimes.
Duty of Loyalty
What is it?
Duty of Loyalty = if an interest to the attorney, another client, or a third party materially limits or is adverse to loyal representation, then the attorney has a conflict of interest.
Imputation
General Rule + Exceptions
Rule: an attorney and all the members of her firm share conflicts.
Imputation Exceptions
- The conflict is personal to the attorney, so representation by another lawyer in the firm would not adversely or materially limit representation, OR
- The attorney is properly and timely screened from the matter and the affected persons are given timely notice.
- Imputations can be waived by the affected clients.
When is an attorney permitted to take a representation with an adverse conflict?
Rule: a lawyer must not take representation with an adverse conflict UNLESS:
- L reasonably believes that everyone can be represented effectively
- Representation does not involve the assertion of one claim by one client against the other,
- Clients are informed of conflict and possible reprecussions
- Clients give consent
CALIFORNIA: same requirements, but disclosure of conflict and client consent must be in writing.
What should a lawyer do if a conflict emerges after representation begins?
- Disclose the potential/actual conflicts as they arise,
- Get further consent,
- Withdraw if consent is not reasonable.
Rule re: Business Transactions with Clients
Rule: L may enter into business with, or obtain an interest adverse to the client if:
- Terms are fair to the client,
- The terms are fully disclosed in a cognizable writing,
- The client is provided the opportunity to consult outside counsel, AND
- Client provides written consent.
Rule re: Payment of Stock/Equity
Rule: it’s totally kosher so long as:
- the stock/equity received is equal to the services provided,
- transaction is documented in writing.
Rule re: Limiting Lawyer Liability
ABA Rule: L cannot limit client’s right to report L for ethical or other professional violations; L cannot limit malpractice liability UNLESS the client is independently represented.
Cal. Rule: cannot limit liability in any circumstance.
Rules re: Loans and Advances to Client
ABA: no financial assistance except for:
1. the costs and litigation expenses of indigent client, or
2. The advance of expenses in a contingent fee matter if client promises to repay.
Cal: permitted in all matters as long as in writing and the promise to pay client’s debts is not an effort to gain business.
Rule re: Gifts to Lawyer
ABA: L cannot solicit a substantial gift from C or draft instrument (e.g., a will) if it provides a substantial gift to the L or L’s relative (unless the testator/settler is a close relative).
California: only prohibits inducing gifts, does not prohibit drafting.
Rules re: Attorneys as Witnesses
ABA: L cannot serve as counsel and witness at the same trial unless:
- the L’s appearance as a witness would not prejudice the client,
- The testimony is uncontested or pertains to the nature or value of the services provided, OR
- withdrawal would cause substantial hardship to the client..
California: only prohibited in jury trials; kosher with client’s written consent.
Permissibility of Representation of Opposing Present Clients’ Interest
(e.g., Natalie’s firm is representing Walmart in a securities action, can Natalie represent Rachel in an employment action against Walmart?)
ABA: Only permitted with the reasonable consent of both clients.
California Insurance: CA does not extend this prohibition to representing a policyholder and his insurance company as joint clients if the insurer’s interest in the matters are only as indemnity provider.
Rule re: Clients with Inconsistent Interests
(e.g., Rachel argues against the Dobbs decision for one client, but argues in favor of the decision for another)
Rule: If attorney is arguing for and against the same issue in two different cases, it is permissible provided that:
- Both clients consent,
- Representation would not disadvantage either (if a client would be disadvantage, L must withdraw).
Representation of Multiple Clients in the Same Matter
General Rule: an attorney may represent the clients if:
- L has a reasonable belief that the clients can be represented effectively,
- L discloses conflicts to clients
- Clients consent
Duty to Not Improperly Solicit Clients
Rule: Ls may not seek professional employment for pecuniary gain by initiating a live telephone or electronic contact with a prospective client the L has no prior professional/personal relationship with.
- Solicitation of family/friends and pro bono is okay.
- Agents of the lawyer cannot solicit in these ways.
CA Presumption: scene of the accident/en route to medical facility is repugnant behavior.
- Also do not solicit people you know are unable to exercise reasonable judgment.
General Rules of Advertising
ABA
1. Ads cannot be false or misleading (including omission to that effect),
2. Unjustified expectations are prohibited
3. No testimonials or endorsements unless express disclaimer that they are not guaranties, warranties, or predictions.
CA
Presumes any ads with guaranties/warranties improper.
Rule re: Claims of Legal Specialities in Advertisement
ABA
- Can explain fields of practice
- Claims of legal specialty ok only if L has certificate is specific legal subject issued by state bar, or private org approved by ABA or identified as one not approved by the state.
CA
Specialization requirement: experience, examination, education, and evaluations.
Duty to Expedite Cases
ABA: L has an affirmative duty to expedite.
CA: L must not delay cases to harass adversary for personal gain or convenience
L cannot abuse or obstruct discovery
L must follow valid procedures and rules unless making a good faith challenge.
Duty to Preserve Impartiality and Dignity of the Tribunal
ABA
- Before or During Trial: Attorney may not attempt to influence a party improperly; an attorney must not speak with prospective or empanelled jurors.
- After Trial: L may interview juror so long as no harassment or influence of future juror service.
CA
- Before/During Trial: same as ABA
- After Trial: must tell juror they have the right to refuse an interview and must furnish a copy of any resulting court declaration.
Attorney Fees
ABA
- Fees must be reasonable (taking into account labor, novelty, difficulty, skill and timing required, experience of L, fee arrangement, etc.)
- L must explain how fee is computed, which services are covered, and lawyer/client duties
CA
- Fees must not be unconscionably high, requires atty to participate in arbitration if client requests it
- Fees may not be unconscionable.
Contingent Fee Requirements
ABA
- Must be in writing
- Must be signed by client, AND
- Must state: (a) the percentage going to L, (b) the expenses to be deducted from recovery, and (c) whether the percentage is taken before or after expenses.
CA: contingent fee agreement must state how non-contingent fee work will be paid and notice that fees are negotiable.
In what cases are contingent fees prohibited?
ABA
- Domestic relations cases, and
- Criminal Cases
CA
- permitted in domestic cases so long as fee does not encourage break up
- Silent on permissiveness of criminal cases (?!)
Rule re: Third Party Payment of Services
A party may pay for the services rendered to L’s client if:
- The client consents,
- No interferences with L’s professional judgment or loyalty to client,
- Arrangement does not compromise confidential information.
Fee Splitting Outside the Firm
ABA: total fees reasonable, client consents, and the fee split is proportional to the work done.
CA: total fee is not unconscionable, written disclosure and written consent
Rule re: Referral Fees
ABA: no referral fees allowed
CA: referral fees okay
Fee Splitting with Non-Lawyers
ABA/CA: not allowed except for:
- death benefits,
- fees passed on as salaries and pensions to non-lawyer EEs, and
- sharing of court-awarded legal fees w/a non-profit org
Mandatory Withdrawal/Rejection
ABA Rule: L must decline to take on a representation or withdraw from a representation if:
- Representation will result in a violation of the rules of professional conduct or other law,
- The lawyer’s mental/physical condition impairs her ability to represent the client, OR
- L is discharged by the client.
CA Rule: California adds an additional ground for mandatory withdrawal/rejection:
- Client brings action or asserts a position without probable cause or for the purpose of harassing or injuring another person.
Permissive Withdrawal
ABA Rule: L MAY withdraw if:
- It can be done without material adverse affect on client’s interests, OR
- There is good cause
CA Rule: substantially similar to ABA rule, however, permissive withdraw is permissive when the client knowingly and freely assents to termination.
Duty to Protect Client’s Interest on Termination of Representation
A lawyer must take steps to reasonably protect the client’s interests, including:
- Giving reasonable notice to the client,
- Allowing time for employment of alternative counsel
- **Surrendering papers and property **the client is entitled to
- Refunding unearned payments
When does the client have the final decision?
- Whether or not to accept a settlement offer
- What plea to enter
- Whether to waive a jury trial in a criminal case
- Whether a client will testify in a criminal case
Limiting the Scope of Representation
A lawyer may limit the scope of representation if:
- The limitation is reasonable under the circumstances, and
- the client gives informed consent.
General Rules re: Representation of Organizations
L represents and owes a duty to the organization, not to the individuals associated with the organization; a lawyer must explain this whenever an individual’s interests are adverse with those of the organization.
Representation of Organization: Reporting Violations
ABA & CA: If L learns of a violation inside the organization that is adverse to the organization’s interests, the L must report that discovery to the highest authority in the organization.
- ABA: if the higher authority does not act on report of misconduct, the L MAY report the incident to appropriate outside authorities.
- CA: L MAY NOT report to the higher authorities unless otherwise prompted under federal law.
Example: Natalie learns that Jamie is engaged in insider trading of Amazon stock; Natalie tells Jeff Bezos, who responds “I don’t fucking care, who doesn’t inside trade? It’s awesome!”
- Under ABA Model Rules Natalie may report Jamie to the SEC.
- Under Cal. Rules: Natalie MAY NOT report Jamie to the SEC (disclosure is permissive, not mandated under SOX, therefore, no preemption)
Duty of Competence
Duty & Remedy
Rule: L must act with legal knowledge, skill, thoroughness, and preparedness reasonably necessary for representation.
Remedy: if a lawyer does not know the law, they must decline to take on the representation, unless they can:
- Learn it without undue expense or delay to the client, OR
- Consult with a competent L
Distinction b/w Discipline and Malpractice Liability
Discipline = an administrative action brought by the state bar.
- L may be disciplined whether or not the client suffered actual harm.
Malpractice = a civil action whereby the plaintiff must prove that L breached her duty of care.
- A plaintiff client will only prevail in a malpractice suit if they show actual damages resulting from breach by L.
Duty of Communication
A lawyer must:
- Explain the matter to the extent necessary for the client to make informed decisions,
- Keep the client informed of all significant developments, AND
- Promptly comply with all reasonable requests for information.
CA’s Required Communication to Client re: Lack of Liability Insurance
No Liability Insurance: A lawyer without liability insurance must notify clients in writing at the time of engagement.
Loss of Insurance During Representation: if L loses insurance during representation, must notify client within 30 days.
When No Disclosure Required
- Representation will not exceed 4 hours
- L is acting within direct employment as gov atty or in-house counsel OR
- L is rendering services in an emergency.
Duration of A/C Privilege
ABA & CA
- ABA: lasts indefinitely, beyond death.
- CA: terminates when client’s estate is settled amd the personal representative is discharged.
Difference Between A/C Privilege and Duty of Confidentiality
A/C Privilege: an exclusionary rule of evidence that prevents L from being compelled to testify.
- Scope: covers confidential communications between A/C.
Duty of Confidentiality: an ethical rule that prevents disclosures in and out of the courtroom.
- Scope: covers all info relating to the representation from any source.
Consequences of Failing to Handle a Conflict of Interest
- Civil Liability (Malpractice Suit)
- Discipline by State Bar
- Disqualification by court in litigation
Requirements for Resolving Current Client Conflict
Rule: even if there is direct adversity or a material limitation, L may overcome and continue with representation if:
- L reasonably believes she can competently and diligently represent the client despite the conflict,
- representation is not prohibited by law
- representation does not involve claims on both sides of the same litigation, AND
- each client gives informed consent in writing
California Insurance Company Rule
re: representation of company and policy holder
Rule: a lawyer who is retained by an insurance company to represent an insured person also represents the company for conflict purposes.
- HOWEVER, the L has no duty of loyalty to the insurer when the insurer’s interest in a matter is only as an indemnity provider and not as a direct party to the action.
Rules re: Third Party Compensation
L cannot accept payment for services from someone other than the client unless:
- the client gives informed consent,
- there is **no interference **with the lawyer’s independence or professional judgment, AND
- the client’s confidential information is protected.
Rule re: Aggregate Settlement Agreements
Rule: L cannot participate in the making of an aggregate settlement agreement unless:
- L discloses to each client the existence and nature of all claims and pleas involved,
- L discloses the participation of each person in the settlement, AND
- Each client gives informed written consent and is signed.
Rule re: Use of Former Client’s Information in Subsequent Representation
Rule: L cannot use confidential information to former client’s disadvantage without consent or a confidentiality exception.
L once defended Kim against trademark infringement charges and gained access to to her confidential files.
Can L now use that knowledge from K’s representation to represent Becca in a different infringement action against Kim?
No, not without Kim’s consent.
Rule re: Opposing Former Client in Substantially Related Matter
Rule: L cannot represent new client adverse to former client in same or substantially same matter without the informed written consent of the former client.
What is a “substantially related matter” in the context of former client conflicts?
Matters are substantially related if either:
- Same transaction or dispute, OR
- There is a substantial risk that information obtained in the prior representation would materally advance the new client’s position.
Rule re: Opposing Client of Former Firm in Substantially Related Matter
e.g., When Natalie worked at WH, the firm represented McDonald’s in a shareholder derivative suit. When Natalie starts working at GD, the firm begins representing a class of shareholders in a second suit that arises out of the same transactions as the suit handled by WH.
Rule: Prohibited without consent IF L actually acquired material confidential information at the firm.
Can GD represent the shareholders in the second action against McD’s?
- YES – if N didn’t acquire any material confidential info while working at WH.
- NO – if N acquired confidential material information while working at WH (whether through conversation in the microwave line, or by working on the matter directly)
Effect of Incoming Lawyer’s Conflict on Firm
ABA: If a lawyer’s conflict comes from association with former firm, others at new firm will not be disqualified if:
- Disqualified lawyer is screened,
- Disqualified lawyer doesn’t share in fee, AND
- Former client is given notice
CA: above steps won’t work if the disqualified lawyer substantially participated in the matter.
Prospective Client
definition
Prospective Client = person who consults with L in good faith about possibility of A/C relationship.
Rule re: Subsequent Representations Against Prospective Client
ABA Rule: After consultation wit prospective client, cannot represent another party in same or substantially related matter if information gained from prospective client could harm them in subsequent representation of the third party.
- Conflict can be waived with informed written consent.
CA Rule: any material information gleaned from prospective client creates a conflict.
- conflict can be waived with informed written consent
Imputation of Prospective Client Conflicts
Rule: No imputation (others at firm not disqualified) if:
- Disqualified L avoided exposure to unnecessary info,
- Disqualified L is screened,
- Disqualified L doesn’t share in fee
- Notice to prospective client
Rule re: Double Billing
ABA & CA
ABA: double billing prohibited; deemed unreasonable and dishonest.
CA: double billing is permitted if:
- the fee charged to each is not “unconscionable”
- the L clearly disclosed the billing practice at the outset of the relationship, AND
- L obtained consent of both clients.
California Fee Arrangement Writing Requirement
+ Exceptions
Rule: fee arrangements must be in writing if it is reasonably foreseeable that services will exceed $1000.
Exceptions: even if fee exceeds $1000, writing not required if:
- the client is a corporation,
- the client states in writing they don’t want a written fee agreement,
- the legal services are the same the client previously received and paid for, OR
- a writing is impractical for other reasons
Rules re: Discharge of Lawyer on Contingency
Rule: client may discharge L working on contingent basis.
- L is usually entitled to the reasonable value of services provided until discharge.
- L only gets paid if client recovers.
Duty to Safekeep & Deliver Client Property
Rule: L must:
- **identify and label **client properties and put them in a safe place,
- promptly notify client or third party of when L receives funds/property
- promptly deliver property client/3rd party is entitled to
- keep records for at least five years after final distrbution of property.
Duty to Disclose Harmful Legal Authority in Litigation
A lawyer cannot knowingly fail to disclose to the court controlling legal authority that is directly adverse to the client’s position and has not been disclosed by opposing counsel.
Remedial Measures for Introducing False Evidence
ABA: If L offered evidence and later finds out it is false, L must take three steps:
- urge client to cooperate in withdrawing or correcting the false evidence,
- if unsuccessful, seek withdraw of evidence or try to strike evidence,
- if all else fails, disclose situation to judge.
CA: no step 3, the duty of confidentiality supersedes the duty of candor to the tribunal.
ABA Rule for Perjury by Client
If L knows criminal client plans to testify falsely in court, L must:
- urge client to testify truthfully
- if unsuccessful, consider withdrawal,
- if all else fails, disclose situation to judge
California Rule for Perjury by Client
The lawyer may offer a criminal client’s false testimony in narrative form if L:
- made reasonable efforts to dissuade the client from testifying falsely, and
- has unsuccessfully sought permission to withdraw
Offering Evidence in Narrative Form = L questions clients in ordinary way up to the point of false testimony; at that point, lawyer calls for answer in narrative form (e.g., “then what happened?”)
- L is not permitted to rely on the false portions of the testimony.
Rule re: Trial Publicity
General Rule & Right to Reply
General Rule: L cannot make out of court statements that L should reasonably know:
- will be publicly disseminated, AND
- has a substantial likelihood of materially prejudicing the matter.
Right of Reply: L may make a public statement that a reasonable lawyer believes is required to ptoect a client from substantial undue prejudical effect of recent publicity not initiated by L or L’s client.
Communicating with a Person Represented by Counsel
In representing a client, L may not communicate about the subject of the representation with a person in the matter they know to be represented by counsel unless
- person’s counsel grants permission, OR
- L is otherwise authorized to make direct communication (e.g., by court order)
Rule re: Communication with Employee of Represented Company
L must get consent of organization’s counsel before communicating with:
- Any current employee,
- The person who supervises, directs, or regularly consults with the org’s lawyer concerning the matter,
- A person with authority to obligate the org with respect to the matter, OR
- A person’s act or omission in connection with the matter may be imputed to the organization
Communications with Unrepresented Persons
L may communicate with an unrepresented person so long as:
- L does not state or imply they are disinterested,
- If unrepresented person misunderstands L’s role, L must correct understanding, AND
- If the person’s interests conflict with a client’s interest, L cannot give any legal advice.
