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62 Cards in this Set

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What are the duties owed to clients?
Fiduciary Responsibilities
& other reasonable things

In your analysis remember to do each client separately.
What are the duties owed to everyone other than clients (court, third parties, public, etc)

& other reasonable things
What is the general rule regarding The Duty of Confidentiality (to your client)?
Rule: you can't reveal anything related to the representation of a client without her consent.

Duty of confidentiality lasts indefinitely after the formal representation.
What is the rule regarding the attorney client privilege? And differences from confidentiality?
The AC priv allows a client and his lawyer to refuse to testify about confidential communications between them or their agents.
- The model rule applies whether or not the info is privileged.

Scope: Only applies to communications pertaining to legal services.
- While, confidentiality covers any information that could lead to discovery of confidential information.

Source: Only shields you from information from client or agents.
- While, confidentiality the source does not matter.

Timing: In **CA**, the AC priv terminates when the client's case is settled.
- While confidentiality continues indefinitely.
What are the four major exceptions to the duty of confidentiality?
1) Consent, Implied Consent

2) Crimes:
. (i) Death or substantial bodily harm
. - **CA** Must: 1) try to persuade client, 2) inform client of decision to reveal confidences.
. (ii) Substantial Fraud or Financial Crime: (NARROW)
. - Distinguish: **CA** Does NOT exist in **CA**

3) Defending yourself.

4) If compelled by law, final court order, or other controlling ethical duties
Describe the duty of loyalty to your client
To avoid conflicts:
1) an interest of you,
2) another client, OR
3) a third party
materially limits or is adverse to loyal representation, you have a potential or actual conflict of interest.

Also, remember imputed disqualification too.
What do you do if conflicts between your clients emerge only after joint representation begins?
Disclose potential and actual conflicts as they arise and get further CONSENT.

Remedies: refuse to take the case, advise multiple clients to get separate counsel or withdraw
Under what circumstances may you take on representation that poses a conflict of interest?
1) You reasonably believe you can represent everyone effectively (Objective test)
2) You FULLY inform each affected client; and
3) The client consents in WRITING.
What does imputed disqualification mean?

What are the exceptions?
This means that you and all members of your firm share conflicts.

Exceptions are when:
1)conflict arises from previous GOVERNMENT service; OR
2)the conflict of the lawyer arises from a purely PERSONAL relationship that would not affect the ability of other firm members.
- In these cases an Ethical Wall may make representation reasonable.
What is an ethical wall?
You block off any contact on a matter where there is a conflict of interest between the lawyer with the conflict and other lawyers in the firm.
When can a client enter into business transactions with his lawyer or when can a lawyer obtain an interest adverse to the client?
1) The TERMS must be FAIR to the client;
2) FULLY disclosed in understandable WRITING;
3) The CLIENT has an opportunity to consult an OUTSIDE lawyer; AND
4) Your client provides WRITTEN consent.
In CA can you make loan advances to your client? What does the ABA say?
**CA** yes. loans are okay as long as there is a WRITTEN IOU.

ABA - NO, you cannot give financial assistance
EXCEPTION: costs and litigation expenses when representing an indigent; and when the client promises to pay back advance of expenses.
Can you prospectively limit your liability?

And can only settle with client over a malpractice claim if the client has consulted an outside attorney.
Can you get a publication contract to your clients story?
**CA** Maybe, but discourages such contracts before the end of proceedings.
- Can be done if judge is satisfied that the client clearly understands and consents

ABA: NO, not before end of proceeding.
What is the rule regarding gifts to the lawyer or lawyer's family?
You must not:
1) solicit a substantial gift from a client; OR
2) draft a legal instrument for a client which provides a substantial gift to you or your relative.
. .a) Exception for close relatives
Can trial counsel be a witness in CA? what does the ABA say?
**CA** prohibits attorneys testifying in jury trials UNLESS the client consents in WRITING.

ABA: NO, Unless
Appearance won't prejudice client; AND
1) Testimony is uncontested or regarding the nature and value of services rendered; OR
2) If your distinctive value to the case would mean withdrawal would impose hardship on the client.
What is the general rule regarding CONFLICTS BETWEEN CLIENTS?
Generally: you may represent clients with potential conflicts with the PROPER CONSENT of all BUT it is almost NEVER proper if their interests are in ACTUAL CONFLICT.

**CA**: rules absolutely prohibit you from taking a case adverse to a client you are currently representing.

ABA: doesn't prohibit but it is rarely reasonable.
What is the rule regarding insurance providers and policy holders as joint clients?
**CA**: there is no prohibition to representing a policyholder and his insurance company as joint clients where the insurer's interest in each matter is only as an indemnity provider.
What is the rule regarding prosecutor's later working on defense of the same case?
**CA** NO, explicitly prohibits this!

ABA: If gov't lawyer worked personally and substantially on a MATTER then it is a conflict.
- Note that matter is litigation, not drafting regulations
May other members of a firm represent a client against the government if one attorney is disqualified for previous government work? How?
1) lawyer must be SCREENED OFF; and
2) lawyer must NOT SHARE in any part of the fee in the matter; AND
3) your gov't employer is INFORMED(not consent).
What is the general rule regarding conflicts due to third party interference?
Your sole duty is to your client, not to any third party.

This arises when 3rd party is paying for services (Insurance), consent from client.
May you accept compensation from a third party?
yes, but only with informed client consent.
What does the Sarbanes-Oaxley Act require for securities lawyers? CA?
1) you must report a security law violation to the CEO or highest legal counsel of the company. if they don't respond...
2) go to the board or the highest authority in the company.
3) if that doesn't work and you reasonably believe you need to prevent fraud or substantial injury to investors or the organization, you may disclose without client consent confidential info to the SEC.
**CA** specifies permissive, not mandatory reporting to a higher internal authority and would prohibit outside publication. but preemption would mean **CA** lawyer would have to comply with sarbanes oxley.
In NON-CONTINGENT fee cases, what do **CA** and the ABA require attorney fee agreements to include?
1) how the fee is calculated;
2) what services are covered; AND
3) the lawyer and client's duties.

**CA**: agreements must be in writing unless:
(i)fee under $1000;
(iii)routine for regular client; OR
(iv)corp client.
For contingent fee cases, what do the ABA and **CA** require for content?
ABA WRITTEN fee agreement must say:
1) your percent;
2) what expenses are to be deducted from recovery; AND
3) whether your percent is taken before or after expenses

**CA** also requires that agreements state:
4) how work not covered by the contingency fee will be paid, AND
5) that lawyer's fees are negotiable, not some standard percent of recovery.
Which kinds of actions allow contingent fees?
ABA: contingent fees may not be used in domestic relations or criminal cases.

**CA** says okay to contingent fee divorces provided the fee arrangement won't encourage the breakup of an otherwise savable marriage.
In a contingent fee case, how is a lawyer who terminated his services before an award treated?
If and when client wins, then lawyer can recover in quantum meruit(proportion of work) for contingent fees.
When are fees too high?
**CA**fees must NOT be UNCONSCIONABLY high.

Can an attorney fee-split with attorneys inside his firm? outside the firm?
Inside = Yes

Outside = Yes if:
1) the division is PROPORTIONAL to work done; AND
2) with WRITTEN disclosure and consent of client.
What is CA's/ABA's policy on referral fees?
**CA** Allowed, if:
1) total fee is not unconscionable; AND
2) total fee is not increased due to the split.

ABA PROHIBITS referral fees.
Is fee splitting allowed with non lawyers?
Generally NO, Exceptions:
(i)Pension or Death benefits; OR
(ii)Share with NONPROFIT that employed or recommended the lawyer
What is the rule regarding client trust accounts including property, money, and records?
Personal Property: Duty to safeguard your client's property by labeling and storing it in a safe.

Money: Must be placed in a client trust account.
- Possibly with interest to client; or if small, then interest to state bar.

Records:Duty to keep good records for your client.
- **CA** requires you to keep these records of client property for five years.
Describe the duty of competence.
Duty of competent to use the legal knowledge skill thoroughness and preparation reasonably necessary for the representation.

No knowledge of Legal Area, you must:
(i) Be able to put in the time to learn it without undue expense or delay to your client;
(ii) Associate with a lawyer competent in the area; OR
(iii) Refuse to take the case.
Describe the other common sense duties to your client
Duty of Diligence: you have to duty to diligently, promptly and zealously pursue your case to completion.

Duty to Communicate: you have a duty to keep your client informed about the case including settlement offers.
What is the rule regarding accepting representation?
Generally: You are free to accept or to reject any case.

You SHOULD accept, as part of your duty:
a) defenseless or oppressed; AND
b) PROBONO(aba says 50 hours probono is urged).

Conversely you MUST REJECT a case if it would cause you to violate a law or disciplinary rule to take it.
What type of decisions is the client supposed to make and what are decisions for the lawyer to make?
Client: decisions regarding her substantive rights (whether to testify in a criminal case, accepting plea bargains or settlement offers).

Attorney: decisions on procedure and legal strategy (choice of motions, what discovery to seek). if you disagree, you can limit the scope of representation.
When must you withdraw from representation?
1) the client fires you
2) mandatory withdrawal
. .a) you must if continuing would violate a law or ethical rule.
3) permissive withdrawal.
. .a) If it will NOT cause UNDUE DELAY or DISTRUPTION; AND
. .b) you convince the court there is good cause:
. . . .(i) Failure to Pay
. . . .(ii) Acts illegally (ABA also allows withdrawal if your client has used your services to commit a crime or fraud)
. . . .(iii) Insists on pursuing an objective you find repugnant or imprudent
What are procedures for withdrawal from a case?
You must:
1) provide timely notice to the client, AND
2) you also must promptly return:
(a) any unspent fee and expense advances, AND
(b) all material papers and property of client.
- -
Include everything needed to pursue the case, even work product, and even if the client has not paid
**CA** forbids withholding your client's materials for money.
Describe the duty of candor to the public and dignity of the profession regarding advertising and solicitation.
1) Attorney advertising and solicitation is commercial speech under the 1st Amendment.
2) Advertising must not be false or misleading.
. .- **CA** presumes improper any ad that contains guarantees, warranties or predictions of a result.
3) You can't claim you are a certified specialist unless you are.
4) Ads must not harass or solicit someone who indicated they wanted to be left alone.
. .- Cannot use direct mail to solicit personal injury or wrongful death clients within 30 days of accident

5) Ad must be LABLED as advertising and you must keep records of ads for 2 years.
What are the rules regarding solicitation?
Do not seek emplyment by initiating a live or telephone contact with a prospective client with whom you have no prior contact.

**CA** presumes that communications made at the scene of an accident or en route to a medical facility are improper, as are communications to potential clients that you should know are not in the physical or mental state to exercise judgment.
Describe the duty of candor to the court and fairness to your adversary
Generally: A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

1) Duty to present facts and evidence truthfully:
2) Duty to produce evidence
3) Duty to state the law truthfully
4) Duty to uphold the law
What is the duty in communication with adversaries and third parties?
1) You must not lie to people or MISLEAD them as to your interests.
2) You must not VIOLATE legal rights of a person to obtain evidence or EMBARRASS them.
3) No communication with a party you know is represented by counsel without consent of counsel.
What are a lawyers duties when dealing with the press?
1) You must avoid out of court statements that you reasonably should know have a substantial likelihood of materially prejudicing the case.
. .a) matters in public record or routine booking info
. .b) warning the public;
. .c) informing them of ongoing investigation or asking for help;
. .d) statements required to protect your client from substantial undue prejudice from recent publicity not self initiated.

NOTE: Prosecutors and their associates must not make comments that have a substantial likelihood of heightening public condemnation of the accused.
What are the basic and special duties of prosecutors?
Prosecutors have higher ethical obligations, they must:
1) have probable cause
2) protect the accused's rights, including not subpoenaing a lawyer to present evidence about a client unless it is essential and unprivileged; AND
3) timely disclose evidence favorable to the defense.
What are the duties of impartiality and decorum?
Duty to preserve the impartiality and decorum of the tribunal:
1) don't try to influence anybody improperly (jurors mostly)
2) no chicanery (trickery esp by lawyers and politicians)
3) duty to preserve decorum of the tribunal.
What duty does an Attorney have to expedite a case?
Duty to Expedite cases:

1) Delay:
. a) **CA** must not delay cases to harass an adversary.
. b) ABA, you have affirmative duty to expedite.

2) You have a duty to follow valid procedural rules or court orders unless you are making a good faith challenge to their validity. You must not abuse or obstruct discovery.
Are you allowed to practice in another state while suspended or not admitted?
No unless allowed by law, a pro hac vice order by the local court or under limited exceptions.

**CA** Multi Jurisdictional Practice:
1) Require lawyer to register with CA bar
2) pay dues
3) satisfy continuing legal education requirements; AND
4) be subject to CA ethics rules.

ABA Multi Jurisdicitonal Practice, Allows temporary practice by lawyer in good standing in another state if:
1) Lawyer associates with locally admitted lawyer;
2) services relate to alternative dispute resolution; OR
3) the matter arises out of matters reasonably related to the lawyer's practice.
What is your duty regarding reporting misconduct?
ABA rules REQUIRE a lawyer to REPORT another's violation of the rules if it raises a substantial question as to that person's honesty, trustworthiness, or fitness as a lawyer or judge.

**CA** does not require this, but requires SELF REPORTING for lawyers charged with felony or certain crimes, civil liability for fraud, breach of fid duty, discipline in other jxs or sued for malpractice or sanctioned.
What are duties regarding orders by supervising attorneys?
1) If it is a clear violation, you are subject to discipline
2) If it is a debatable problem, then supervisor is solely responsible
What are duties of supervising attorneys?
1) Supervisor is responsible if he ratified or knew of conduct and failed to take aciton
2) Managing partners must make reasonable effort to ensure that everyon in firm follows rules
3) Inaction: in **CA** you can be disciplined for knowing about a fellow firm member's violation and doing NOTHING to prevent it.
What are the issues owed under the duty of confidentiality (Review)
-attorney client privilege
-ethical duty of confidentiality
What are the issues under the duty of loyalty (Review)
-business transactions or adverse interests
-publication rights contracts
-loans and advances to client
-limiting liability
-use of info
-gifts to lawyer/lawyer's family
-conflicts between clients
-new clients related to former clients
-former gov
What are the issues under the fiduciary duty? (Review)
-attorneys fees
-contingency fees
-fees too high
-fee splitting/referrals
-partnerships with nonattorneys
-client trust accounts
What are the issues under duty of competence and other common sense duties? (Review)
-duty of competence
-duty of diligence
-duty to communicate
-accepting representation
-scope of representation
-duties on withdrawal from representation
-consensual sexual relationships
What are the issues under the duty of candor to the public and dignity of profession? (Review)
What are the duties of fairness to your adversary? (Review)
-deal fairly with others
-dealing with press
-special duties of prosecutors
What are the issues in preserving the dignity of the court and additional duties? (Review)
-duty to preserve the impartiality and decorum of the tribunal
-duty to expedite cases
-additional duties to the profession and public
What are the issues under duties of subordinate lawyers?
What is your duty to present facts and evidence truthfully?
1) Duty to present facts and evidence truthfully:
. .a) FALSE STATEMENTS - must not make a false statement or offer evidence you know is false or fail to correct a false statement.
. .b) CLIENT PERJURY - Must not knowingly facilitate client perjury.
. . . .(i) Civil, you must refuse to call client as witness if you know intent to perjure.
. . . .(ii) Criminal:
. . . . . .(1) Counsel client to testify truthfully
. . . . . .(2) Try to withdraw from case
. . . . . .(3) **CA** allows defendant to testify in narrative fashion but do not further deception.
. . . . . .(4) ABA (and majority) says tell the judge. Constitutional right to counsel and duty of confidentiality don't protect perjury.
EXCEPTION: If you have a reasonable belief but some DOUBT as to the falsity of testimony, the rule is PERMISSIVE.
What is your duty to produce evidence?
2) Duty to produce evidence: You can't suppress any evidence that you or your client have a legal obligation to produce
. .a) You must turn over physical evidence given to you by client
. .b) Cannot interfere with evidence, you can verify it is there, but you can't touch or alter anything
. .c) PROSECUTOR SPECIAL DUTY: to turn over evidence favorable to defense
What is your duty to state the law truthfully?
3) Duty to state the law truthfully
. .a) you have an obligation to be candid about the law, and a duty to cite adverse authority, if its from a controlling jurisdiction and directly on point.
What is your duty to uphold the law?
4) Duty to uphold the law
. .a) don't assist in crimes. prevent your client from causing death or serious bodily injury. See duties to client