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47 Cards in this Set
- Front
- Back
What are the duties owed to clients? To entities other than clients?
Acronym |
Clients Love Fierce Counsel; Court Feel Differently
CLIENTS 1 Confidentiality 2 Loyalty 3 Financial Responsibilities 4 Competence ENTITIES OTHER THAN CLIENTS 1 Candor 2 Fairness 3 Dignity/decorum |
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General rule for duty of confidentiality to client
When are disclaimers valid? |
Do NOT reveal anything related to representation of client
ONLY when they are in sufficiently plain terms |
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Duty of confidentiality vs attorney-client privilege
Scope, source of info, timing |
Duty is broader
Privilege is ONLY about attorney communication with client (with no 3rd party present) made during course of relationship and bars attorney's formal testimony ; duty protects against any disclosure about all information regarding representation In CA, privilege terminates when client's estate is settled; duty continues on |
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A/C Privilege Exceptions
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Client can refuse to testify and prevent his atty from testifying unless:
In ABA and CA 1) To Enable Future Fraud of Crime 2) Suit between Atty and Client 3) Joint Clients 4) To show competency or intention of client who has attempted to dispose of property by will or inter vivos transfer In CA only To prevent substantial bodily injury or death of person |
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Exceptions to the duty of confidentiality
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1 Consent, express or implied
2 Defending yourself in malpractice, ethics opinion, etc. 3 Compelled by law 4 Crimes |
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ABA vs CA on the crimes exception to duty of confidentiality
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Financial crimes; CA has NO confidentiality exception, but ABA allows it IF client uses services to commit crime AND disclosure would avoid substantial financial loss
Death or substantial bodily harm a) ABA & CA: atty may reveal what is necessary to prevent act if he reasonably believes disclosure is necessary b) CA says, if reasonable, first make good faith effort to: 1 Persuade client to not act AND 2 Inform client of decision to reveal confidences |
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Duty of Loyalty
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If an interest of client, yourself, or a third party materially limits or is adverse to your loyal representation, you have a conflict of interest.
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Atty-Client Conflicts
What is the rule for gifts to atty or atty's family? Exception? |
Atty canNOT:
--Solicit gift OR --Draft legal instrument creating gift UNLESS close relative |
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Atty-Client Conflicts
What is the rule for ability of atty to limit his liability? CA distinction? |
ABA...
--NO to preventing client from reporting ethics concerns --Malpractice liability limitation, NO UNLESS client rep'd by separate atty CA: NEVER EVER |
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Atty-Client Conflicts
What is the general rule on publication rts Ks? CA distinction? |
ABA: NONE before end of proceedings
CA: No UNLESS judge allows it due to client understanding and consent |
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Atty-Client Conflicts
What is the rule for loans/advances to clients? CA distinction? |
ABA: NO, EXCEPT litigation expenses when...
--Rep'ing indigent --Payment and repayment for contingency fee cases CA aspects... --Atty canNOT pay PROSPECTIVE client's debts --Atty CAN loan to a client for ANY purpose as long as client gives written promise to repay |
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Atty-Client Conflicts
What is the test for when an atty can transact business w/client or has adverse business interest to client? |
First Discuss O(O)ver Coffee
1 Fair terms to client 2 Disclosed in understandable written disclosure 3 client has Opportunity to consults Outside atty AND 4 written Consent |
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Atty-Client Conflicts
What is rule for atty as witness? CA distinction? |
ABA: NO UNLESS...
--No prejudice to client, if so need written consent --Testimony is UNcontested OR regards atty-client relationship OR if the atty's withdrawal from the case for the purpose of testimony would result in substantial hardship to the client (atty has distinctive value for the clien) CA (less restrictive): Always YES in bench trial, NO in JURY trials UNLESS written consent, or uncontested matter, or regarding atty-client relationship. |
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Atty-Client Conflicts
What is the rule for close relationship with the opposing counsel? What is close relationship in CA? |
NO UNLESS consent
CA definition broad, includes roomates |
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What is imputed disqualification? Remedies? What is CA distinction?
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Atty and other attys at firm share a conflict UNLESS...
--Conflict due to prior gov't service --Conflict is personal to atty and no affect on other firm attys (mention construction of ETHICAL WALL) Remedies: withdrawal, refuse case, recommend separate counsel CA: Does NOT subject atty to discipline for imputed conflicts |
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When representation of multiple clients with CoI or possible CoI is permissible?
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1) Atty (incl imputed atty) has a reasonable belief that she can represent all clients effectively despite potential or action CoI
*CA belief can be subjective 2) Inform each affected client * if DoC prevents disclosure, then client consent may be impossible 3) Client consents, confirmed in writing (*CA, in personal conflict, consent is still required but may not be in writing as long as atty disclosed the conflict in writing) 4) Screening required for imputed conflicts Disclose potential/actual conflicts AND Get further consent IN WRITING |
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Conflicts btw current clients
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Opposite sides of the same matter -> NEVER
In another matter -> Permissive DoL conflict CA: NO, UNLESS atty reps policyholder and insurer as joint clients and insurer is merely indemnifier |
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Conflicts btw atty's former and new (imputed) clients
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Stay in the same firm: If representation of new client would overlap in function, scope or information, then potential for DoC and DoL conflict -> Permissive representation based on consent by former client
Leave the firm: the firm may represent the new client unless: a) matters are substantialy related or the same, AND b) any remaining lawyer has confidential information Enters new firm: the firm can represent clients in conflict with the atty's former clients if: 1) the atty is timely and effectively screened off, 2) receives no direct part of the fee, 3) the former clients are notified, and 4) former clients receive periodic certifications of compliance with these conditions |
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Conflicts btw clients
What is rule for rep'ing multiple clients in same case? Civil vs crim |
Civil: Okay IF only potential conflict, THEN requires disclosure AND consent, OTHERWISE NO
Crim: NO, duty of confidentiality and 6th amendment issues |
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Conflicts btw clients
What is the rule for former gov't atty now working in private practice? |
ABA: IF gov't atty worked personally and substantially on the matter, then there IS a conflict.
Firm can continue to represent, if: 1) the atty is timely and effectively screened of, 2) does not shares directly any part of the fee, and 3) gov is notified CA: Explicitly bars former prosecutors working on defense of the same case ABA exceptions to imputed disqualification... --Atty is screened off --Atty does NOT share in profits AND --Atty's gov't employer is informed Judicial clerks, ABA rules apply |
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Conflicts
What is the general rule for attys serving on BOD of corporate client? Exception |
Strongly discouraged b/c of fiduciary duty to corp, so canNOT rep another officer in action related to corp business
EXCEPT atty can be on BOD of a legal services org that is NOT his employer |
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Conflicts
What are the atty's duties under Sarbanes-Oxley? CA distinction? |
1 Report violations of securities laws to CLO
2 If case taken up, pursue; IF case not taken up, report to BOD 3 If BOD does nothing, reveal confidences to SEC CA: Atty can ONLY report within; NO reporting to outside body; BUT fed preemption will allow CA atty to go outside anyway |
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What must a non-contengent fee agreement include? CA distinction?
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ABA + CA require:
--Fee calculation --Covered services (scope) --Atty and client duties CA requires more: --In writing, with exceptions like corp client and routine services |
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What must a contengent fee agreement include? CA distinction?
What kinds of cases can they not cover? CA distinction? How to handle fee disputes? CA distinction? |
ABA + CA require:
--Atty %, and when deducted --Expenses to be deducted from recovery CA requires more: --Atty fee is negotiable ** ABA: CanNOT be used in crim and domestic relations CA: Divorce okay SO LONG AS fee won't encourage break-up of otw salvageable marriage ** ABA: Encourages arbitration of fee disputes CA: Requires arbitration |
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What is the rule for fee-splitting? Who can? Can't?
Referral fees? CA distinction? |
Who can?...
--Other firm attys --Attys outside firm IF total fee is okay AND consent Who can't?... --Non-lawyers UNLESS non-profit who employed/recommended atty Referral fees... --ABA, fine --CA, NO |
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What is rule for partnerships w/non-attys? Exception?
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NOT ALLOWED
BUT, can enter reciprocal referral agmt SO LONG AS not exclusive |
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Where to place client money? Rules?
What about smaller amounts? What to do with money if fee dispute? |
Client trust acct
NO borrowing or commingling For smaller amount, IOLTA where remainder goes to state bar If fee dispute, RETAIN disputed portion of money in acct until settled Duty to keep good records for your client, render accounting and notify him of money received on his behalf, and pay promptly money due to him. *CA requires 5 years for record keeping after distribution |
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Professional Liability Insurance Disclosure
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ABA requires to disclose insurance carriage on annual registration to the bar.
*CA, if no insurance, need to disclose to client (>4hrs of work) at the time of engagement in writing |
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What is duty of competence? Can atty take on case when doesn't know the law?
Consequences of violating duty of competence? |
Using legal knowledge, skill, thoroughness and prepation reasonably necessary for representation
*IF no knowledge of law, CAN take case IF... --Atty can put in time to learn at NO undue burden to client OR --Atty associates w/knowledgeable atty Includes: Duty of Diligence (diligently, promptly and zealously pursue the case) Duty to Communicate (especially settlement offers) ** Discipline Disqualification Malpractice |
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Who makes decisions about what as btw atty and client?
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Atty: legal strategy
Client: substantive rights - testimony in criminal trial - plea and settlement |
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Ways to leave a case before matter is resolved...
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--Client fires atty
--Mandatory withdrawal for incompetency, client use of services for fraud, pursuit of frivolous claims --Permissive withdrawal |
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For what can atty permissively withdraw... (acronym)
Procedure? |
FAIR
--Financial burden to atty --Acts illegally --Insists on pursuing objective repugnant to atty --Refusal of client to fulfill obligations to atty ** --Timely notice to client AND --Promptly return unspent expenses/fees AND material evid *CA forbids holding on to the file until reimbursement CA prohibits holding material evid until client pays |
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Duties of candor to the public & dignity of the profession: ads and solicitation
What serves as limitation of ABA's ability to regulate atty ads/solicitations? What is the test? |
1st amendment rt to commercial speech
Intermediate scrutiny test |
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Duties of candor to the public & dignity of the profession: ads and solicitation
General rule on ads? CA particularities? |
Ads must NOT be misleading or false
CA presumptions of improper ads that contain: --Guarantees --Warranties --Predictions of result --Testimonials that imply above 3 CA: Burden on atty |
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Duties of candor to the public & dignity of the profession: ads and solicitation
Rule for claiming legal specialty? |
CanNOT UNLESS certification of specialty
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Duties of candor to the public & dignity of the profession: ads and solicitation`
Is targeted mail okay? When? |
Yes IF meets guidelines for labeling as ad materials
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Duties of candor to the public & dignity of the profession: ads and solicitation
What is the rule for solicitation? Exception? |
NO solicitation for pecuniary gain by initiating live or telephone contact w/client w/whom no prior relationship (*CA excludes IM/chat).
Agent of atty cannot do what atty cannot do BUT, atty can solicit for pro bono work AND atty can solicit persons truthfully who are known to face a specific legal problem |
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Duty to candor to court & fairness to adversary
What is duty? |
Duty to refuse to make false stmt of material fact, or offer evid known to be false, to tribunal, OR to not correct something that turns out to be false
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Duty to candor to court & fairness to adversary
What is rule w/re to client perjury? Civil vs crim trial? |
Rule is NO knowing facilitation of client perjury, but rules are permissive if atty reasonably believes.
CIVIL- CanNOT call client as witness if atty knows client will perjure himself CRIM- Must allow testimony due to 5th amendment rt to testify Rule is atty must take reasonable remedial measures --Counsel client to testify truthfully OR not take stand --Atty can try to withdraw After end of rep, atty gets to know about perjury, request to recant, otherwise no duty after proceeding ended. CA: Allow client to testify in narrative fashion |
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What is rule for duty to produce evid?
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NO concealment or destruction
BUT IF client tells atty where the evid is, NO duty to tell authorities SO LONG AS atty doesn't mess with evid Prosecutors MUST produce all evid |
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Can atty communicate w/client he knows is being rep'd? CA rule?
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NO
CA: Consent required to interview officer, director, manager of org |
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What is rule for dealing w/press? Special rule for prosecutors?
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Atty and agents must avoid out-of-ct stmts they reasonably should know may materially prejudice case
Prosecutors must NOT make comments that heighten public condemnation of accused |
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Aspects of duty to preserve dignity of ct
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NO talking to jurors UNLESS after trial w/ct permission
NO bad conduct in courtroom |
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Duty to report misconduct?
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ABA: YES
CA: NO, BUT requires self-reporting |
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When is atty immune from being disciplined for violation of professional standards?
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NEVER, not even in private life
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Duties of subordinate attys?
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IF atty is under control of another and he violates ethics:
--Controlling atty subject to discipline IF clear violation --Partner responsible ONLY IF debatable problem |
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Nonlawyers
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Atty canNOT use a nonlawyer to engage in te unauthorized practice of law.
Paralegals CAN research cases; but canNOT write briefs and help settle |