Rules Flashcards
When is an attorney client relationship formed?
- Express agreement of parties
- Implied agreement, based on INTENT AND CONDUCT of parties, e.g. when someone seeks legal services and lawyer fails to clearly decline despite knowing that person is reasonably relying on them
- Court appointment
In communicating with the client, the lawyer must:
- Explain to extent necessary to permit the client to make INFORMED decisions
- Keep client REASONABLY INFORMED about status, including all significant developments
- Promptly comply with all REASONABLE REQUESTS for information
In California, lawyer must inform client of lack of professional liability insurance in writing at time of engagement.
When can you delay transmission of info to client?
A lawyer may delay transmission of info to a client if client would be likely to react imprudently to immediate communication (but must disclose eventually). In California, can only delay if they reasonably believe client would be likely to react in a way that may cause imminent harm to client or others
Client has final authority over:
- Whether to accept settlement offer. Lawyer must notify client of any settlement offer unless client has previously indicated that the proposal would be acceptable or unacceptable or has authorized lawyer to accept or reject
- What plea to enter
- Whether to waive a jury trial or testify in criminal case
California: Lawyer must always promptly communicate all terms and conditions of a proposed plea bargain in a criminal case or all amounts, terms, and conditions of any settlement offer in all other matters to client, regardless of circumstances.
Illegal or fraudulent conduct
Lawyer must not counsel or assist client in illegal or fraudulent conduct (tho they may advise of consequences). If client insists on pursuing, lawyer must withdraw.
In California, lawyer must also not assist client in violating a court rule or ruling
Limiting scope of representation
Lawyer may limit scope of representation if the limitation is REASONABLE under the circumstances and the client gives INFORMED CONSENT
When representing organization:
When lawyer learns of action that violates duty to organization or law that might be imputed to organization, lawyer must proceed as REASONABLY NECESSARY, including reporting to higher authority.
Model rules also permit outside reporting as necessary to prevent substantial injury but California does not. California does permit withdrawal.
For securities, reporting up is mandatory and if all else fails, lawyer may disclose to SEC without client consent if reasonably necessary to precent substantial injury to organization, to rectify financial injury or prevent client from committing perjury
Lawyer must withdraw or reject representation if:
- Representation will result in violation of rules of professional conduct or other law
- Lawyer’s physical or mental condition SUBSTANTIALLY IMPAIRS lawyer’s ability to represent
- Lawyer is discharged
California only: If client is bringing action, conducting defense, asserting position or taking an appeal without probable cause and for purpose of harassing or malicious injuring any person (anti-SLAPP)
When is permissive withdraw permitted:
when it can be accomplished without MATERIALLY ADVERSE effect on client’s interests or where there is GOOD CAUSE to do so (in California, withdrawal allowed if client knowing or freely assents even if this is not met), e.g.
- Client persists in criminal or fraudulent course of actions involving lawyer’s services—or has already done crime or fraud
- Client fails to substantially fulfill an obligation to lawyer (paying bills) and has been given reasonable warning
- Representation rendered unreasonably difficult
- In model rules but not in California: repugnant action or fundamental disagreement, unreasonable financial burden on lawyer
When terminating representation:
When terminating representation, lawyer must take steps as REASONABLY PRACTICABLE to protect clients’ interests, including giving reasonable notice, allowing time for employment of other counsel, surrendering papers and property, and refunding unearned advances
Duty of confidentiality (generally)
Lawyer must not reveal any information RELATING TO representation of client or to use confidential information to client’s disadvantage, unless client CONSENTS or some other exception applies. As part of duty, lawyer has affirmative duty to take REASONABLE MEASURES to prevent unauthorized access to confidential information.
Applies to info gained from prospective clients and continues even after client has died.
When an exception applies, lawyers may disclose confidential information only to the extent reasonably necessary to meet each exception.
Exceptions to duty of confidentiality
- Consent or implied authority
- Prevent death or substantial bodily harm. (California: to prevent CRIMINAL ACT that is likely to result in death or substantial bodily harm. Before disclosure, lawyer must make good faith effort to persuade client not to commit or continue criminal act and inform client of lawyer’s ability to reveal information.)
- Prevent or rectify substantial financial loss, if client is using or has used lawyer’s services in furtherance of crime or fraud. (California does not recognize this exception.)
- Defend self in disciplinary or malpractice proceedings or establish claim against client
- Obtain legal ethics advice. (California does not recognize this exception.)
- Address conflict resulting from organizational change. (California does not recognize .)
- Comply with court order or law
Contrast to attorney client privilege
Attorney client privilege only applies to confidential communications pertaining to legal services between the lawyer and client.
Duty of loyalty
A lawyer owes a duty of loyalty to their client and must avoid or properly address any conflicts of interests.
imputation
Conflicts are imputed, unless conflict is uniquely personal or based on certain situations involving disqualified lawyer’s prior work or employment and lawyer is properly screened.
Imputation can be waived
Direct adversity
Direct adversity: Client will be directly adverse to another client who is represented by lawyer, e.g.
- Multiple clients in same matter whose interests are in conflict
- Representation of client who is an adverse party in a different matter
- Representation of client adverse to existing client of lawyer or firm
- As part of representation, lawyer must conduct a harmful or embarrassing cross examination of another existing client
California: No duty of loyalty to insurer when insurer’s interest in each matter is only as an indemnity provider and not as direct party.
Material limitation
SIGNIFICANT risk that representation of client will be MATERIALLY LIMITED by lawyer’s own interest or by lawyer’s responsibilities to another client, former client, or third person, e.g.
- Representing multiple parties on same side and parties have potentially conflicting interests (e.g. Kevorkian)
- Former client conflict that could affect representation of current client
- Lawyer owes duty to some third party
- Where lawyer has personal or financial interest relating to the matter
*May not use client’s confidential info to their disadvantage unless client gives informed consent
How to address conflicts
Lawyer can still represent if:
- Lawyer reasonably believes they can competently and diligently represent
- Representation is not prohibited by law
- Representation does not involve asserting a claim by one client against another client represented by that lawyer in same proceeding where lawyer is on both sides of same litigation
- Each affected client gives informed consent, confirmed in writing. (California: informed written consent)
Business transactions with client and pecuniary interests adverse to client
Lawyer may not enter into business relationship with client, e.g. accepting non-monetary property as payment, unless (“First discuss over coffee”):
- Terms are fair to client
- Terms and lawyer’s role in transaction are fully disclosed to client in writing
- Client is advised in writing that they should get outside lawyer
- Client gives informed consent signed by client
Substantial gifts
Lawyer must not SOLICIT substantial gift or prepare an instrument on behalf of client giving substantial gift to lawyer. Does not apply if client is related to recipient of gift.
Financial assistance to clients
No financial assistance (in California applies to financial assistance in all contexts not just litigation), except
- Advancing some court litigation expenses
- Paying court costs and litigation expenses for indigent client
- Basic living expenses for indigent pro bono client. (California does not recognize this exception, but allows lawyers to lend client money with promise of repayment.)
Aggregate settlement agreement
Lawyer must not participate unless they disclose to each client the existence and nature of all claims or pleas involved and participation of each person and each client gives informed written consent signed by client
Compensation from someone other than client
Compensation from someone other than client not permitted unless client gives informed consent, there is no interference, and confidential info is protected (3 I’s: informed, interference, info)
Settling malpractice claim
May not settle malpractice claim with unrepresented client or former client without first advising them to get independent counsel and giving them reasonable chance to do so.
Prospectively limiting malpractice liability
May not prospectively limit liability for malpractice unless client is independently represented. California does not allow in any circumstance.
Acquiring literary or media rights
May not acquire literary or media rights about case. California does not have this rule and treats as business interest.
