Duties

Front 1

Type of Duties (4)

Back 1

1) Competence
2) Diligence
3) Confidentiality
4) Super Fiduciary Duty

Front 2

Necessary Legal Knowledge and Skill (5 factors)

Back 2

(1) Complexity and specialized nature of the matter
(2) Lawyers general experience
(3) Lawyers training and experience in the field in question
(4) Preparation and study the lawyer is able to give the matter
(5) Whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field.

Front 3

Duty of Competence (generally)

Back 3

When representing a client must act with the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.

Front 4

Becoming competent through preparation (Duty of Competence)

Back 4

A lawyer may accept representation despite lacking competence in the fields involved if the requisite competence can be achieved by reasonable preparation.

Front 5

Emergency situations (Duty of Competence)

Back 5

A lawyer may assist a client, even if the lawyer does not have the skill ordinary required in the field, if referral or consultation with another lawyer would be impractical. But the assistance should not exceed what is reasonably necessary to meet the emergency.

Front 6

Thoroughness and Preparation (Duty of Competence)

Back 6

A lawyer must inquire into and analyze the facts and legal elements of the problem, applying the methods and procedures used by competent practitioners.

Front 7

Duty of Diligence

Back 7

A lawyer should pursue a matter on the client’s behalf despite opposition, obstacles, and personal inconvenience, and may take whatever lawful and ethical measures are required to vindicate the clients cause. The lawyer should act with dedication and commitment to the client’s interests and with zeal in advocacy on the client’s behalf.
i) Diligence does not require incivility
ii) Workload: a lawyer must control their workload so that each matter can be adequately handled.

Front 8

Duty of Confidentiality (generally)

Back 8

This is stronger than the ACP. This is an ethical duty that prohibits an attorney from voluntarily revealing information relating to the representation of a client.

Front 9

Duty of Confidentiality (rationales) (3)

Back 9

i) Encourages candor between the lawyer and the client
ii) Encourages the client to seek early legal advice
iii) Helps the lawyer discover all the relevant information

Front 10

Effect of a 3rd Party on Duty of Confidentiality

Back 10

The duty is not destroyed by a 3rd party. Confidential information remains confidential even if it is known to others, UNLESS
i) The information becomes generally known:

Front 11

Generally known exception

Back 11

This depends on all the surrounding circumstances. But it is not generally know when
1) it can only be obtained by means of special knowledge or
2) substantial difficulty or expense.

Front 12

When MAY a layer reveal Confidential Info? (6)

Back 12

(1) Client’s Informed Consent (1.6(a)):
(2) Implied Authority (1.6(a)):
(3) Dispute concerning attorney’s conduct (1.6(b)(5)):
(4) Disclosure to obtain legal ethics advice (1.6(b)(4))
(5) Disclosure to prevent death or substantial bodily harm (1.6(b)(1))
(6) Disclosure to prevent or mitigate substantial financial harm (1.6(b)(2), (3)):

Front 13

Implied Authority (When MAY a layer reveal Confidential Info)

Back 13

An attorney has implied authority to use or disclose confidential information when appropriate to carry out the representation, unless the client gives specific instructions to the contrary.

Front 14

Dispute concerning attorney’s conduct (When MAY a layer reveal Confidential Info) (3)

Back 14

can reveal confidential information to the extent necessary to protect the attorney’s interest in a dispute that involves the attorney. The attorney should:
(1) Reveal only what is necessary
(2) Attempt to limit the disclosure to those who need to know it; AND
(3) Obtain protective orders or take other steps to minimize the risk of unnecessary harm to the client.

Front 15

Disclosure to prevent death or substantial bodily harm (When MAY a layer reveal Confidential Info) (3)

Back 15

a lawyer may reveal info to the extent that the lawyer reasonably believes necessary to prevent reasonably certain death or substantial bodily harm
(1) Does not have to be caused by the client
(2) The cause need not be a criminal act
(3) The death or bodily harm does not have to be imminent, only reasonably certain.

Front 16

Disclosure to prevent or mitigate substantial financial harm (When MAY a layer reveal Confidential Info) (4)

Back 16

can disclose to the extent necessary to prevent the client from:
(1) Committing a crime or fraud
(2) That is reasonably certain to result
(3) In substantial financial harm
(4) The client is using or has used the lawyers services in the matter

Front 17

When a lawyer MUST disclose confidential info

Back 17

When disclosure is required by law or court order

Front 18

Attorney Client Privilege (Definition)

Back 18

COMMUNICATIONS between the ATTORNEY and the CLIENT.
- Different from DoC

Front 19

Exclusionary rule of law (ACP)

Back 19

Prevents courts from using the twin powers of subpoena and contempt to compel the revalation of confidential communications btwn an att. And client.

Front 20

Communication (ACP) (def.)

Back 20

information passed from the client to the attorney, or from the attorney to the client, including through agents.

Front 21

Mechanical Details: (Communication) (ACP)

Back 21

Does not cover the mechanical details of the ACR (ex: ID of client, fee arrangement). UNLESS revealing them is tantamount to revealing a privileged communication

Front 22

Preexisting documents and things (Communication) (ACP)

Back 22

Cannot protect a pre-existing document just by turning it over to the attorney. If it would have been discoverable in the client’s hands, then it is discoverable in the attorney’s.

Front 23

Preliminary communications (Communication) (ACP)

Back 23

Covers preliminary communications leading up to an ACR even if no such relationship develops.

Front 24

What is Confidential? (ACP) (2)

Back 24

A communication is covered by the ACP if
(a) it was made by a means not intended to disclose the communicated information to outsiders; AND
(b) the communicating person REASONABLY BELIEVES that no outsider will hear the contents of the statement.

Front 25

3rd Party effect on ACP

Back 25

The presence of a third party will not destroy confidentiality as long as the third party was present to help further the Att-C-Relationship. They do not have to play a direct role in the communication and may be present because of the clients psychological needs (e.g. family members).

Front 26

Client definition (ACP)

Back 26

Any person or entity that seeks legal services from an attorney

Front 27

Corporate clients (ACP)

Back 27

From Upjohn case

Covers communications between the lawyer and
(1) a high-ranking corporate official
(2) other corporate employee if
(i) employer communicates with the lawyer at the direction of the employee’s superior;
(ii) employee knows that the purpose of the communication is to obtain legal advice for the corporation; AND
(iii) the communication concerns a subject within the scope of the employee’s duties to act for the corporation.

Front 28

Attorney (ACP) (2)

Back 28

(1) a person who is authorized (or who the client reasonably believes to be authorized) to practice law in any state or nation; AND
(2) is acting as an attorney – not in some other capacity

Front 29

Disclosure vs. Use (ACP)

Back 29

only covers the disclosure of information.

Front 30

ACP Waiver (2)

Back 30

ACP exists for the benefit of the client not the lawyer, and therefore only the client can claim or waive it. For there to be a waiver, there must be:
1) Failure to claim privilege when there is an opportunity to do so; OR
2) The intentional revelation of a significant portion of the privileged communication

Front 31

Lawyer duty to invoke privilege

Back 31

If the client has not waived the privilege, the lawyer must claim the privilege on the client’s behalf.

Front 32

Duration of ACP

Back 32

Indefinite. None of the following will end privilege
i) Termination of relationship
ii) Death of client

Front 33

ACP Exceptions (7)

Back 33

1) Crime or fraud
2) Breach of duty
3) Joint Civil Clients
4) Competency or intention or intention of a client who as attempted to dispose of property by will or inter vivos transfer
5) Self Defense:
6) Collection of Fees:
7) “FIduciary Exception”:

Front 34

Crime or fraud (ACP Exceptions)

Back 34

Client seeks the attorney’s service to engage or assist in future crime or fraud

Front 35

Breach of duty (ACP Exceptions)

Back 35

Communications that are relevant to an issue of breach (by either the attorney or the client) of the duties arising out of the ACR

Front 36

Joint Civil Clients (ACP Exceptions)

Back 36

In civil litigation between two people who were formally joint clients of the attorney.

Front 37

Intention (ACP Exceptions)

Back 37

Competency or intention or intention of a client who as attempted to dispose of property by will or inter vivos transfer

Front 38

Self Defense (ACP Exceptions)

Back 38

A lawyer can defend himself by revealing privileged information if they are sued or challenged in a disciplinary proceeding

Front 39

Collection of Fees: (ACP Exceptions)

Back 39

Can show the work the attorney did when suing to collect fees.

Front 40

“FIduciary Exception”: (ACP Exceptions)

Back 40

A beneficiary is entitled to communications between the lawyer and the fiduciary

Front 41

Work product immunity (def.)

Back 41

Material prepared by a lawyer for litigation, or in anticipation of litigation is immune from discovery or other compelled disclosure

Includes lawyer’s mental impressions and opinions.

Front 42

Work product immunity exception (2)

Back 42

the opposition shows:
1) Substantial need for the material; AND
2) An inability to gather the material without undue hardship.

Front 43

Lawyers as “Super Fiduciaries”

Back 43

Lawyers have the highest obligation among other fiduciaries.

Front 44

Lawyers as “Super Fiduciaries” (Rationale) (3)

Back 44

1) Client expects it
2) The lawyer may have acquired information about the client that gives an unfair advantage in dealing with clients
3) Many clients will not be in a position to change attorneys, and will be financially or psychologically dependent on the attorney’s continues representation.

Front 45

Lawyers as “Super Fiduciaries” (Restrictions) (3)

Back 45

1) Lawyers cannot use client info to benefit themselves
2) Lawyers cannot take advantage of an adverse position to their client
3) Lawyer cannot borrow money from their client

Front 46

Conflicts of Interest (generally)

Back 46

- exists when there is a substantial risk that the lawyer’s representation of the client will be materially adversely affected by the lawyer’s own interest or the lawyer’s duties to another current client, a former client, or a third party.

- Absent the necessary informed consent a lawyer MUST not represent if a conflict of interest exists.