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26 Cards in this Set

  • Front
  • Back
Attorney duties owned to client
Fiduciary responsibilities
& other reasonable things
Additional duties to entities other client
& other reasonable things
Clients love fierce counsel: courts feel differently
Fiduciary responsibilities
& other reasonable things
Duty of confidentiality owed to client
Attny cant reveal anything related to the representation of a client w/out consent. The rationale is to maximize candor and trust, allowing the adversarial system allow work. The duty of confidentiality can attach before a lawyer/client relationship has been formed, or eve if none is ever formed.
Confidentiality is broader.
A/C privilege scope
A/C privilege shields only information obtained FROM THE CLIENT OR AGENTS. Information OBTAINED from 3d parties not priv. Duty of confidentiality does cover information from 3d parties. Duty of confidentiality continues indefinitely.
Duty of confidentiality exceptions
1) consent
(a) requires consent after CONSULTATION. Or where IMPLIED. I.e. invention to patent office.
2) Crimes
(b) ABA confidentiality exception if client used L’s services to commit, and disclosure would prevent or mitigate substantial loss.
(c) Death or serious bodily harm: may reveal to prevent the act, if reasonable belief that disclosure is necessary to prevent a crime.
(d) CALIFORNIA permissive disclosure: must first, if reasonable, 1) make good faith effort to persuade C not to commit the act and 2) inform C of intent to reveal. If reasonable to do so.
3) defending claims against the lawyer
(a) malpractice; disciplinary action; suit to recover fees. May reveal to support any claim or def of the lawyer
4) compelled by law, final court order, or OTHER CONTROLLING ETHICAL DUTIES.
Duty Of Loyalty/Conflicts of interest
The duty of loyalty owed to clients provides that where the interests of another client or 3d party MATERIALLY LIMITS, or is DIRECTLY ADVERSE to loyal representation of an existing client there is a potential or actual conflict of interest.
The attorney must INFORM each affected client and obtain WRITTEN CONSENT. If the duty of CONFIDENTIALITY prevents the attorney from disclosing information necessary to the client's understanding of the conflict, then consent is not possible.
The lawyer must not assume representation even with consent, unless he REASONABLY BELIEVES that he can represent his client EFFECTIVELY, despite an actual or potential conflict. Where conflicts emerge only after representation begins, the lawyer must DISCLOSE conflicts as they arise and obtain further CONSENT.
imputed disqualification
imputed disqualification means that all associated L share conflicts.
CALIFORNIA follows rule for disqualification, but no DISCIPLINE for imputed conflicts.
imputed disqualification exception
Exception where conflict from prior government svc.
Where conflict for the L arises from purely personal relationship
Remedies for duty of loyalty problem
1) Refuse to take the case or advise multiple C to get separate counsel or WD.
Conflicts: business transaction w client
L may enter into business w C or maintain an interest adverse if:
1) Terms are fair to C
2) Fully disclosed in understandable writing
3) C consults outside L
4) C provides written consent
L on Board of Client
Strongly discouraged likely to compromise duty of loyalty and confidentiality
L may serve as officer or director of legal services corporation that is not his employer, so long as not knowingly participate in action adverse to C
Publication rights contracts
CALIFORNIA : discourages K before end of proceedings but tolerated if judge satisfied that the terms are fair to the client and full disclosure
ABA prohibits till representation ended
Loan to C
CALIFORNIA prohibits promise of paying a prospective clients debts but allows loans in all matters for any purpose after the client is hired if there’s a written agreement.
ABA no financial assistance. Except for costs and expenses.
Limiting liability for malpractice or ethics violation
Can’t prospectively limit liability for ethical or professional violations or malpractice liability. Unless indep counsel. Settling malpractice requires written advise to C to consult outside L first.
General California exceptions
California will allow more than ABA if it is written down.
Gifts to L or L family
Must not solicit gift or draft instrument for other than close family if it provides substantial gift to L or L relative.
Trial counsel as necessary witness
ABA cannot serve as counsel and witness unless appearance will not prejudice the c and testimony is uncontested or regarding nature and value of services or if testimony is of distinctive value; WD would impose substantial hardship
Opposing present clients interests
California prohibit L from taking a case adverse to a client currently represented, regardless of relationship of the cases ABA does not prohibit but rarely reasonable. California doe not extend to representing a policyholder and his insurance co as joint clients where the insurer’s interest in each matter is only as an indemnity provider.
Representing two clients w inconsistent positions
Permissible with consent of both clients. But if either would be disadvantaged L must WD.
Sources of PR Rules
1) Model Rules of Professional Conduct (model rules)—adopted by most states
2) California Rules of Professional Conduct (Cal. RPC)
Responsibilities of partner or supervising partner
A lawyer will be responsible for another lawyer’s violation of the RPC if 1) the lawyer ORDERS or RATIFIES the conduct or, 2) the lawyer is a PARTNER or SUPERVISOR over the other lawyer and KNOWS of the conduct but fails to take REMEDIAL ACTION.
CALIFORNIA ANY members of a firm can be disciplined if they APPROVED or KNEW and did nothing to PREVENT.
referral arrangements and Payments for recommending
it is unethical for a lawyer to pay someone for recommending him. Additionally, under the RPC, referral fees are prohibited. However, a lawyer may divide fees with an outside lawyer IN PROPORTION to the services performed by each lawyer. The fee split must be in writing, signed by the client.
Under the california rules, a lawyer may pay a referral fee to an outside lawyer who refers a case if the total fee is not increased by the referral fee and the agreement is disclosed and the client consents.
Reciprocal Referral Arrangements are permitted where 1) non-exclusive 2) fully disclosed to client and 3) client consents in writing.
Restrictions on advertisements
RPC require advertisements be true and not misleading and must include name and address of lawyer responsible for the ad.
CALIFORNIA prohibits: 1) guarantee of outcome 2) suggesting QUICK CASH or QUICK SETTLEMENT 3) disclosure of IMPERSONATION of lawyer or DRAMATIZATION of accident 4) warning to client if contingency fee imposes payment of costs for lost case.
In person solicitation
A lawyer may not solicit business 1) by phone 2) in person 3) “real-time” electronic contact.
Concurrent conflict of interest
Concurrent conflicts of interest are prohibited. Concurrent conflict of interest exists where: 1) representation of a client would be DIRECTLY ADVERSE to the interests of another client, or 2) SIGNIFICANT RISK that representation would be MATERIALLY LIMITED.
Both clients MAY CONSENT