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Professional Responsibility > Responsibilities to the Client > Flashcards

Responsibilities to the Client Flashcards

1
Q

Competence

A
  1. Requisite legal knowledge & skill
  2. physicial and mental ability
  3. requisite time and resources to handle the case
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2
Q

Steps to take when not competent

A
  1. tell client to seek other counsel
  2. study to become proficient in time to rep client wih his permission and at no additional charge
  3. associate with competent atty with client’s consent
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3
Q

Client decisions in representation

A

substantive issues: when to file, settle, accept a plea & testify

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4
Q

Attorney’s decisions

A

Procedural (court conduct of discovery, strategy)

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5
Q

Following clients deicsions

A
  • Thus, attorneys must abide by the client’s wishes unless doing sowould be illegal, unethical, or immoral. Also, a lawyer cannot further a client’s unlawful objectives by knowingly providing legal advice to effectively commit or conceal a crime.
  • Alternative:  Withdraw
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6
Q

Client losing capacity

A

What if the client loses the ability to make a clear decision? For example if you suspect that greedy relatives are trying to unduly influence your elderly client in her estate decisions, you can
seek the appoint of a guardian ad litem or take other appropriate action.

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7
Q

Communication with Client

A

An attorney must keep the client informed of the objectives and status of the representation. The attorney must promptly comply with reasonable requests for information.

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8
Q

Maintain Client Confidences

A

you may not disclose any adverse information no matter the source

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9
Q

Confidentiality broader than A/C privilige

A
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10
Q

Confidentiality survives death

A
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11
Q

When confidentiality can be broken

A
  1. to avoid or prevent harm or substantial financial loss to another as a result of client or third party criminal conduct clearly in violation of the law.
  2. to prevent serious injury or death
  3. to establish a legal defense in a criminal charge or civil claim involving the client
  4. with the client’s consent

An attorney MUST reveal confidences as required by law.

Confidence survives death

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12
Q

When A/c privilige comes into conflict with duty of a tribunal

A

remain silent

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13
Q

when must an attorney withdraw

A
  1. result in rule violation
  2. if he is forced
  3. conflict arises
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14
Q

when may an attorney withdraw

A
  1. client pursues a repugnant or imprudent objective
  2. when client fails to fufill an obligation
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15
Q

Conflicts rules of thumb

A

assume conflict exists even if possibility is remote

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16
Q

Lawsuits gainst current and former clients

A
  • Lawsuits between current and former clients: you may represent a current client in an action against a former client except:
    • When your current client wants to sue your former client involving a matter or transaction in which you represented the former client; OR
    • When during representation of the former client you learned confidential information that is now relevant to the action by the current client. Note that if the two matters are “substantially related”
      there is an irrebutable presumption that such
      knowledge was acquired.
17
Q

Steps necessary to obtain consent from a conflict

A
  1. explain the conflict
  2. explain the potential negative consequences
  3. send client to thing about it and give oppotunity to consult independent counsel

After taking these steps you must decide whether a resaonbly prudent lawyer would take the case

18
Q

Unwaivable conflicts

A
  • Successive conflicts are always unwaiveable
  • Those prohibited by law
  • Those in which it is unlikely that the lawyer can provide adequate representation to the affected clients.
  • Current clients in the same or substantially related proceeding. Two common examples are:
    • criminal matters (co-defendants)
    • domestic matters
  • Will drafting–you cannot be beneficiary of a will you drafted unless family member or a de minimus or nomial gifts
    • GA, will drafter owes duty to testator and beneficiaries–they can sue for malpractice
19
Q

Lending money to clients

A

cannot do it, even de minimus, except for litigation expenses

20
Q

Fee payment by a 3P

A

okay but duty is alwasy to your client

21
Q

Conflict between your client and you

A
  • in order to waive a conflict between the attorney and the client, the attorney must get the informed consent of the client.
    • If the conflict is a consentable one, an attorney may continue to represent each affected client, if the affected or former client consents (preferably in writing) after:
      • informed consultation with the attorney about the conflict
      • adequate information in writing about the material risks
      • advice and opportunity to consult with independent counsel
    • Limiting your malpractice exposure: You cannot limit your malpractice exposure by getting your client to agree not to sue you for malpractice. A lawyer is always subject to liability for discipline and malpractice. The commission of malpractice does not necessarily mean the conduct which led to the claim is subject to, rises to the level of, or is appropriate for discipline. Like disciplinary proceedings, in most cases the state of limitations on legal malpractice claims is four years.
22
Q

Business with a client

A

genearlly prohbiited.

Does not apply to standard commerical transaction or business not connected to represetnation

always applies to financial interests adverse to you client

23
Q

Similar claims of clients

A

must represent each client zealously

24
Q

wrongful death

A

fiduciary duty to statutory beneficiaries to ensure their interests are protected even if not clients

25
Q

Corp or partnership

A

presenting a corporation or partnership: As the lawyer for a corporation or partnership, you represent the entity, not any of the individuals involved.
If the CEO of a corporation you represent is taking an action adverse to the interests of the corporation, you must proceed as reasonably necessary in the org’s best interests

26
Q

Imputation

A

Conflicts created by other lawyers in the office: Remember to apply the rule of imputation

Real World: chinese wall or screen

Bar Exam World: walls dont work

27
Q

Related lawyers

A

a matter
where the clients’ interests are directly adverse. They must get consent_ from the clients and the conflict is not imputed to other lawyers within the firm.

28
Q

Fees

A

he basis or rate of the fee must be communicated, PREFERABLY in
writing.

29
Q

Factors determining reasonable fees

A

i. Time and Labor
ii. Novelty and difficulty of the questions involved
iii. Requisite skill
iv. Customary fee within the locality for similar work
v. Experience, ability and reputation of the attorney
vi. Interference with other employment by the attorney
vii. Time limitations imposed by the client

basically, you can consider
whether a fee is reasonable. Thus, it is very difficult for the examiners to ask you whether a fee is reasonable.

30
Q

Contingent Fees

A

Contingent fee agreements MUST be in writing and the writing must include the method by which they are determined.

You cannot charge a contingent fee in criminal or
domestic cases.

31
Q

Dividing legal fees with non lawyer

A

not allowed except for salary, retirement plans, bonuses profit sharing and spouses or heirs of deceased partners may be paid fees earned by the deceased partner

32
Q

Dividing fees with a lawyer in another firm

A

only if:

fee division is propotionate to the work

the client is adviced of fees

total fee is reasonable

33
Q

Depositing and Removing Money

A

Safeguard client property in a separate account or bonded
warehouse maintained in Georgia, in the state where the lawyer’s office is situated, or elsewhere with the written consent of the client or third person.

Every practicing lawyer must have:
i. Operating Account: your money

ii. Trust Account: client’s money
Keep records and do not mix up the operating and trust accounts.Every lawyer who handles other people’s assets
must have a trust account.

34
Q

What to do where fee disputed

A

Pay the undisputed money to client

take undisputed money

resolve disagreement but leav in account

35
Q

IOLTA

A

neighter you nor client gets interest;
all interest on an IOLTA account paid to the GA bar and funds legal serves. Just to be safe only those w/ legal liabilites should be able to sign on the account . The bank cannot require a minimum balance or charge service fees

36
Q

Termination of relationship

A

Professional Responsibility (5 decks)

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