thesis Flashcards
procedure for withdrawal In order to quit representation A lawyer must provide
1) in order to quit An L must provide timely notice to the client must promptly return any unspent fee and expense all material papers and property of the client including work product even if the client has not paid
Fee splitting
A lawyer may split fees with lawyers outside her law firm only if 1) the total fees are reasonable 2)client gives informed consent in in writing 3) the division is proportional to the work done by each attorney’s IN CA rule 1)the total fees are not unconscionable 2)client gives informed consent in writing
If a lawyer knows the document ( )sent , she must
if she knows it was inadvertently sent she must stop reading and notify opposing counsel She must not copy or disseminate the document or use it to your advanta
Lawyer may not enter into business transaction with client unless
Lawyer may not enter into business transaction with client unless 1)the terms are fair 2)fully disclosed in understandable writing 3)the client has an opportunity to consult other lawyers 4)the client consents in writing
When the lawyer represents a corporate client, the lawyer owes a duty
When the lawyer represents a corporate client, the lawyer owes a duty to act in the corporate client’s best interests. The duty to corporate clients provides that if the lawyer learns that the corporation, or one of its agents or employees, were to commit an act of wrongdoing or other act that would be harmful to the corporation’s interests, , the lawyer has a duty to report such information to the highest authority in the corporation, such as the corporation’s CEO or Head of Counsel. If such reporting is not possible, or would not be effective at preventing the harm, under the ABA model rules, the lawyer may report the information to an outside authority to avoid harm to the corporation. In California, however, although internal reporting is still required, reporting to an outside organization is not permitted except when necessary to comply with the requirements of the SarbanesOxley Act
EX PARTE PROCEEDING
communications with the judge regarding the case matter without the attorney’s adversaries presence or their consent. The duty of candor and fairness to the court and her adversary requires not engage in any ex parte contact in order to influence him and if he did he must reveal relevant information to the other party.
ADVERTISING Advertising is protected by the first amendment as commercial speech if it is truthful Advertising refers
Advertising refers to a lawyer’s communication with the public at large
The lawyer may not represent a client who is opposite side of the other client of the law firms
imputed disqualification
A lawyer has a duty of loyalty to its client A lawyer has to act in the best interest for the client. If an interest of lawyer.. As a rule A lawyer must not take the case unless …
Use of information relating to the rperesentation of a client
to her disadvantage and without consent violates duties of both loyalty and confidentiality.
If an interest of lawyer , another client or a third party materially limit or adverse to the interest of one client , the lawyer has conflict of interest. As a rule A lawyer must not take the case unless 1) reasonably believes she can represent everyone effectively (under CA had a subjective good faith belief) 2) inform each affected client 3)written consent of the client
if the conflict ripens from a potential conflict to actual conflict the lawyer need to redisclosure and gain consent.
Under the CA rule, L probably has a stronger argument that he subjectively believed it was possible, given his knowledge of B and S, and the defenses they were making.
Consensual sex with a client Under ABA In CA rule
Under ABA Prohibited unless there was a preexisting sexual relationship
In CA rule allow for a preexisting sexual relationship, but also allow for new sexual relationships so long as sex is not a condition for professional representation,the client is not unduly influenced or coerced into sex, and the lawyer’s performance is not negatively affected by the sexual relationship.
A lawyer has a duty of loyalty to act
A lawyer has a duty of loyalty to act in his best interest.
when funds have been received on the client’s behalf
lawyer has the duty to notify the client and distribute client funds promptly when funds have been received on the client’s behalf, and to distribute funds to third parties
Attorney’s fee
Under the ABA, a fee must be reasonable.\ In CA, fees can’t be unconscionable a fee agreement must be in writing unless it’s (1) less than $1k, (2) with a corporation, or (3) for a routine matter involving an existing client.
A duty to produce evidence
Must not suppress any evidence If lawyer(or investigator) found it but leave it untouched the lawyer does not have to tell the authorities about it retrieves the evidence and examine it then she must produce it and must testify where she found it must not reveal the source of information # duty of confidentiality
lawyer may enter into business with his client only if
( first discuss over coffee) 1) the terms are fair to the client 2) fully disclosed in understandable writing 3) the C has opportunity to consult lawyer 4) the C consent in writing
Advertising must not
Must not false or misleading Must not harass In CA rule (GWP)Ad contains guarantees, warantees, or prediction of the result testimonials or endorsements without an express disclaimer is presumed improper is presumed improper
Sending letters must be
Must be labeled as advertising must include certain information such as must not claim legal specialities unless she is certified specialist Under ABA Allow certification by approved organizations that must be identified
IN CA Requires 4E experience, rxamination,education and evaluation
Both the ABA and California prohibit in person, live solicitation to prospective client without prevoius relationship with.
However, attorneys are allowed to send professional announcements, letters, cards, etc. to people in the area.
Moreover, the document must have certain information contained in it, such as the attorney’s name or if it is a firm, a name of one attorney in the firm and contact information
Provide clients financial assistance Under ABA In CA rule
Must not lend money except for 1)costs and litigation expense to indigent clients and 2)litigation expenses in contingent fee cases. In CA Must not promise to lend a prospective client’s debt allows lending money after he is hired and in writing,
Duty of loyality Under Ca rule if the conflict is a personal conflict, the lawyer only needs to/…
Under CA rulee if the conflict is a personal conflict, the lawyer only needs to provide a disclosure of the conflict in the writing to the client.
contingent fee is it is allowed in
fees to be paid as a percentage of a successful judgment. Contingent fees are not allowed in domestic relations or criminal case CA rule is silent on criminal cases and allows contingent fee divorces provided the fee arrangement will not encourage the breakup
Exceptions to the Duty of Confidentiality under only ABA
The ABA, allow disclosure if the lawyer believes it to be reasonably necessary to avoid serious financial harm to a third party, and the harm would be occur using the lawyer’s services.
If A lawyer know his client is going to commit per jury? UNDER AB
In civil case must refuse to call the clients as witness in criminal case A lawyer may allow the defendant to testify in narrative fassion
Exceptions to the Duty of Confidentiality under ABA and CA rules In California, the lawyer must
A lawyer may reveal a client’s confidential information under the ABA and California rules if he reasonably believes that disclosure is necessary to avoid imminent bodily harm to a third person. Under ABA only avoid serious financial harm to a third party using the lawyer’s services In California, the harm must arise out of a criminal act, and the lawyer must first make good faith effort to persuade the client not to commit the act and inform him of the lawyer’s intent to reveal. If the client sues him for malpractice,bring disciplinary action,refuses to pay the lawyer
PROSECUTOR’S SPECIAL DUTY 1 2
TO DISCLOSE requires that the prosecution must disclose all exculpatory evidence(evidence favorable to D) to the defendant in a criminal case. MALICIOUS PROSECUTION(BRINGING CHARGES WITHOUT PROBABLE CAUSE) Prosecuting attorney may only bring charges supported by probable cause.If he later finds out there is no probable cause the the charges must be dropped
