Professional Responsibility - INCOMPLETE Flashcards
Attorney-Client Privilege
(1) Privilege to keep confidential all communications made in confidence to an attorney for the purpose of securing legal advice.
(2) Because the privilege exists for the benefit of the client, only the client may waive the privilege.
(3) In absence of waiver, the lawyer must assert the privilege on client’s behalf.
Attorney-Client Relationship with Organizations
(1) A lawyer representing an organization represents the organization as an entity through its duly authorized constituents.
(2) The lawyer does not represent the individual employees.
(3) The lawyer must act in the best interests of the organization.
Allocation of Authority Between Client and Lawyer
ABA Model Rules and CA law:
(1) Client
(a) Objectives of representation
(b) Whether to settle
(c) Whether to pay expenses
(2) Lawyer
(a) Tactical means to pursue client objectives
(b) Still have to consult with client on the means
Duty of Loyalty
“A lawyer has a duty of loyalty to his clients. This duty entails avoiding any representation that poses a conflict of interest.
Actual Conflicts of Interest
“An actual (or concurrent) conflict exists when:
“(1) the representation of a client will be directly adverse to the interests of a client; or
(2) there is a significant risk that the representation of a client will be materially limited by the lawyer’s personal interests or by the interests of anohter client, former client, or third person.”
Potential Conflicts of Interest
“A potential conflict exists when the lawyer suspects that an actual conflict may exist but his or her representation has not yet been materially limited.”
If a reasonable lawyer would suspect that a conflict is likely, there is potential conflict.
Representation in Spite of Conflicts
“Despite a concurrent conflict of interest, a lawyer may undertake a representation if:
(1) the lawyer reasonably believes that he can competently and diligently represent each affected client;
(i) In California, there is no "reasonably believes" requirement.
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client who is represented by the lawyer in the same case;
(4) each affected client gives informed consent.
(i) Informed consent means that each affected client must fully understand how the conflict could harm him or her.
(ii) In California, the informed consent must be granted by each client in writing.
(iii) In contrast, the ABA Model Rules do not require informed written consent for potential conflicts.
Unconsentable and Per se Unconsentable Conflicts
Unconsentable Conflicts
“Under RPC 1.7(b), if a reasonable lawyer looking at the facts would have to advise an affected client not to consent, then the conflict is unconsentable and client consent will not resolve the conflict.”
Per se Unconsentable
“If an attorney must disclose Client A’s confidential info in order to tell Client B how the conflict affects him or her, the representation is per se unconsentable with respect to Client B.”
Conflicts for Former Government Lawyers
Lawyer must not represent a client in a matter in which lawyer participated personally and substantially as a government officer or employee, unless the appropriate government agency gives informed, written consent, except as permitted by law.
Mandatory Withdrawal
Mandatory Withdrawal
ABA Model Rules
A lawyer must withdraw from representation, and is subject to discipline if:
(1) Failure to do so would result in violating ethics rules or other law; or
(2) Lawyer's physical or mental condition materially impairs the lawyer's ability to represent the client;
"Because an actual conflict is one that, by definition, materially limits the lawyer's ability to represent a client, withdrawal is mandatory in this situation."
California Approach
A lawyer must withdraw if:
(1) he knows or should know continued employment will violate California rules of prof. resp.,
(2) the lawyer's mental or physical condition renders it unreasonably difficult to carry out employment effectively, or
(3) a lawyer knows or should know a client is asserting a claim or defense without probable cause and for the purpose of harassing or maliciously injuring any person.
Permissive Withdrawal
Permissive Withdrawal
ABA Model Rules Approach
Under ABA Model Rules, a lawyer may seek withdrawal if it can be done without materially harming the client.
Exceptions
(1) Client persists in a course of action the lawyer reasonably believes is criminal or fraudulent;
(2) Lawyer learns previous services of the lawyer have been used by the client to perpetrate a crime or fraud;
(3) Client insists in a course of action the lawyer finds repugnant or with which the lawyer has a fundamental disagreement;
(4) Client fails substantially to fulfill an obligation to the lawyer regarding the lawyer's services (e.g., paying fees) and has been given reasonable warning the lawyer will withdraw, unless the obligation is met;
(5) Representation will result in an unreasonable financial burden on the lawyer;
(6) Client has made representation unreasonably difficult, and
(7) Other good cause exists.
California Approach
California permits withdrawal when:
(1) Client insists on presenting an unwarranted claim or defense,
(2) Client seeks to pursue, or insists the lawyer pursue, an illegal course of conduct, or conduct prohibited by CA rules of prof. resp,
(3) Client renders it unreasonably difficult for the lawyer to carry out employment effectively,
(4) Client insists, in a matter not pending before the tribuna, that the lawyer engages in conduct contrary to the lawyer’s judgment and advice, but not prohibited by rules of prof. resp.,
(5) Client breaches an obligation to the lawyer as to expenses and fees,
(6) Continued employment is likely to result in violation of rules of prof. resp.,
(7) Inability to work with co-counsel indicates the best interests of the client likely will be served by withdrawal,
(8) Lawyer’s mental or physical condition compromise an ability to carry out representation effectively.
(9) Client knowingly and freely consents to termination, and
(10) Lawyer believes in good faith, in a proceeding pending before a triunal, a tribunal will ind other good cause for withdrawal.
Lawyer Cannot Take Interests Adverse to Client or / Business Transactions with a Client
Under AMR or CA law, not allowed unless:
(1) Transaction or acquisition and its terms are fair and reasonable to the client and are fully disclosed and transmitted in writing in a manner which should reasonably have been understood by the client;
(2) Client is advised in writing that client may seek advice of independent lawyer and given reasonable opportunity to seek that advice;
(3) Client consents in writing to the terms of the transaction or the terms of acquisition.
Arguably comes up if lawyer accepts any property (not cash) from client.
Duty of Competence
“Under ABA Model Rules and California law, an attorney must act with the care, skill, preparation, competence, and diligence of a reasonable attorney under the circumstances.”
Duty of Confidentiality
Under ABA Model Rules and California law, a lawyer must not reveal any information relating to the representation of a client.
Exceptions
(1) Client gives lawyer informed consent
(2) Lawyer is impliedly authorized to reveal confidential information to carry out representation
(3) If lawyer reasonably believes disclosure of confidential client communications necessary to prevent a person's reasonably certain death or serious bodily injury.
California equivalent requires:
(i) Lawyer must first make a good faith effort to convince client not to commit criminal act likely to lead to death or serious bodily injury;
(ii) Client must have refused to refrain from committing the criminal act;
(iii) Lawyer must have informed the client of the intention to reveal the client's confidences.
(4) Disclosure of confidential client communications to prevent a crime or fraud likely to produce substantial financial loss to a person, so long as client uses lawyer's services to perpetuate the crime or fraud.
No equivalent exception in California.
(5) For organizational clients, if the lawyer knows the organization is likely to be substantially injured by action of a constituent that violates a legal obligation to the organization or is in violation of law that might be imputed to the organization, the lawyer must proceeds as is reasonably necessary in the best interest of the organization, including:
(i) referral to higher authority, and
(ii) revealing information relating to the representation outside of the organization, notwithstanding ABA Model Rules relating to confidentiality, but only if and to the extent the lawyer reasonably believes necessary to prevent substantial injury to the organization.
No equivalent exception in California.
Duty of Communication
Under AMR and CA law, lawyer must:
(1) Keep client promptly informed of any decision or circumstance to whih client must provide informed consent; and (2) Reasonably consult with the client about means by which to accomplish client objectives.
Sexual Relations with Client
AMR forbids unless relationship existed before client-lawyer relationship commenced.
Duty to Avoid Frivolous Claims
“AMR forbids lawyers from participating in proceedings or arguing an issue unless they can make good-faith arguments for modifying, applying, or reversing existing law.”
CA law forbids lawyers from engaging in frivolous representation and frivolous legal actions.
Frivolous Representation = Participating or preparing to participate in litigation which has the objective of presenting defenses or claims unsupported by existing law or good faith legal arguments based on existing law.)
Frivolous Legal Action = Bringing legal actions, proceeding, or defenses which do not appear “legal or just”, unless defending someone charged with a public offense (i.e., act violating CA penal code).)
Duty of Candor to the Tribunal
AMR forbids lawyers from knowingly:
(1) Making or failing to correct false statements of important facts or law; (2) Failing to disclose adverse controlling legal authority that opposing counsel didn't disclose; (3) Offering false evidence.
“In California, in presenting a matter to tribunal, a lawyer shall:
(1) employ, for the purpose of maintaining the causes confided to the lawyer, such means only as are consistent with truth, (2) not seek to mislead the judge, judicial officer, or jury by a false statement of fact or law, (3) not intentionally misquote to a tribunal the language of a book, statute, or decision, (4) not, knowing its invalidity, cite as authority a decision that has been overruled or statute that has been repealed or declared unconstitutional, and (5) not assert personal knowledge of the facts at issue, except when testifying as a witness."
