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33 Cards in this Set

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  • Back
What encompasses a lawyer's fiduciary relationship with a client?
The FOUR C's:
Conflicts
Competency
Communication - to your client
Confidentiality
Rule 1.1 - Competence
L must provide competent representation to client (legal knowledge, skill, thoroughness and preparation)

Judged by experience, training, preparation - some fields will require expertise
Rule 1.3 - Diligence
L must act w/ reasonable diligence and promptness in representing a client
Rule 1.4 - Communication
L shall (1) inform, (2) reasonably consult re: objectives, (3) comply w/ reasonable requests from C, (4) consult re: limitations of L and the C's expectations, (5) education C so they can make an informed decision
Rule 1.6 - Confidentiality
Cannot reveal info given by C unless given INFORMED CONSENT or it falls under an EXCEPTION (see next card)
EXCEPTIONS TO 1.6
A lawyer MAY reveal info regarded as reasonably necessary to:
(1) prevent reasonably certain death or substantial bodily harm;
(2) prevent C from committing a crime or fraud that is reasonably certain to damage financial or property interests of another (FUTURE);
(3)prevent, mitigate or rectify injury to another's F or P interests reasonably certain to result from the C's crime or fraud (PAST);
(4) secure legal advice about L's compliance w/ rules;
(5) to defend against or establish a claim between a L and C; and
(6) comply w/ other law or court order
Rule 1.13 - Organization as Client
L hired by an org. reps the org.

If he knows of a law violation that will harm the org. the L must proceed in the best interests of the org. If this is not cured - he may reveal under Rule 1.6
Rule 1.2 - Scope of Representation and Allocation of Authority Between Client and Lawyer
L must abide by C's decisions concerning objectives of representation;

He may take impliedly authorized action for the C;

L's representation is not an endorsement of C's views or activities; L may limit scope of representation - so long as it is reasonable and C gives INFORMED CONSENT;

L cannot counsel C to engage in criminal conduct
Rule 1.14 - Client w/ Diminished Capacity - duties to
L must attempt to maintain normal C-L relationship with the C;

If L feels C is at risk of SUBSTANTIAL physical, financial or other harm unless action is taken and cannot adequately act in his own interests, L may take REASONABLY protective actions (GAL, guardian, conservator, etc.)
Rule 1.16 - (part 1) - Declining Representation
Decline or immediate withdrawal of L when:
(1) it will violate the RPC or other law;
(2) the L's physical or mental condition materially impairs ability to represent C; or
(3) L is discharged.
Rule 1.16 - (part 2) - Terminating Representation
Withdrawal if:
(1) it can be done w/out materially adverse effects on the C;
(2) When C wants to pursue something L has said is criminal/fraudulent;
(3) C has used L's services to perp a crime/fraud;
(4) C takes action that L finds repugnant or fundamentally disagrees w/;
(5) C has not fulfilled obligation put upon him by L;
(6) representation will result in an unreasonable financial burden; or
(7) other good cause for w/drawal exists

PROPER NOTICE OF W/DRAWAL MUST BE GIVEN TO COURTS AND CLIENT
Rule 3.3 - Candor Toward the Tribunal
L shall not knowingly:
(1) make a false stmt of fact or law to a tribunal or fail to make a correction;
(2) offer E known to be false - if C or anyone offers E in trial that L knows to be false, he must take REASONABLE REMEDIAL MEASURES - including disclosure to the court.
Rule 4.2 - Communication w/ Person Represented by Counsel
L will not communicate w/ a party the L knows to be represented by another L in the matter - unless L has consent of the L, or is authorized by court or law
Rule 4.4 - Respect for Rights of Third Persons
(1) L shall not embarrass, delay, or burden a third person in representing C.
(2) L who receives a doc meant for someone else shall immediately notify the sender.
Rule 1.5 - (part 1) FEES - Reasonableness
Reasonableness of Fees:
(1) time/labor, novelty/difficulty, and skill involved;
(2) likelihood that taking this case would keep L from taking any other case;
(3) feel customarily charged in locality for similar services;
(4) amount involved and results obtained;
(5) time limitations imposed by C or circumstances;
(6) nature and length of prof. relationship w/ C;
(7) Experience, reputation and ability of the L; and
(8) Whether the fee is fixed or contingent.
Rule 1.5 - (part two) FEES - Scope of Representation
Scope of representation and basis of fees shall be communicated to the C through WRITING preferably w/in a reasonable time after commencing representation
Rule 1.5 - (part three) FEES - Contingency
Fee may be contingent except when prohibited by law. Must be in writing singen by client and must have EVERYTHING about it calculated.

Cannot be done for FAMILY LAW or CRIMINAL DEFENSE case.
Rule 6.1 - Voluntary Pro Bono Service
L has a PR to provide representation to those unable to pay. L should give a SUBSTANTIAL MAJORITY of 50 hrs/year to persons of (1) limited means; or (2) a charity addressing needs of people w/ limited means.

L should also provide financial support of people w/ limited means.
Rule 6.2 - Accepting Appointments
If appointed by a court, a L must represent a person UNLESS:
(1)rep would violate RPC;
(2)rep would be an unreasonable financial burden on L; or
(3)case is so repugnant to L that it would impair the L/C relationship
Rule 7.1 - Communications Concerning a L's Services
L shall not make false or misleading communication about the L or the L's services - material misrep of fact or law, or omitting a necessary fact to make the statement misleading
Rule 7.2 - Advertising
A L may advertise through writing, recorded, or electronic communication
Rule 7.3 - Direct Contact w/ Prospective Clients
A L will NOT solicit professional employment from a prospective C when the motive is for PECUNIARY GAIN.

If written - it must say ADVERTISING MATERIAL on the outside of envelope and on letter
Rule 7.4 - Communication of Fields of Practice and Specialization
L may communicate he does not practice a particular area of law and may not state certification in a field unless he is so certified
Rule 7.5 - Firm Names and Letterhead
Name of a L holding public office will not be used on letterhead when he is not a regular/active participant in the firm.
Rule 3.1 - Meritorious Claims and Contentions
A L shall not assert or defend an issue unless there is a basis in law or fact to do so that is not frivolous

A L for a criminal D may assert that every E of a case must be established.
Rule 3.4 - Fairness to Opposing Party and Counsel
A L shall not:
(1) unlawfully obstruct, alter, destroy or conceal something having potential E value.
(2) falsify E;
(3) Knowingly disobey obligation under the rules;
(4) make frivolous discovery requests;
(5) allude to matters not relevant;
(6) request a third party not give relevant information to opposing party
Rule 4.1 - Truthfulness in Statements to Others
In representing another, a L shall not:
(1)make a false statement of material fact or law to a third per
Rule 4.3 - Dealing with Unrepresented Persons
A L shall not state/imply that the L is a disinterested party and the L must correct any misunderstandings the unrep party may have. The L shall not give legal advice other than to secure counsel
Rule 1.7 - Conflict of Interest - Current Clients
A L cannot represent P1 if it presents a concurrent conflict with his current client P2.

If there is a CC, a L may represent P1 if (1) L reasonably believes he will be able to provide competent rep. (2) it is not illegal; (3) the parties are not adverse to each other; (4) all affected parties consent
Rule 1.8 - Conflict of Interest - Current Clients - SPECIFIC RULES
An L cannot use info from C to disadvantage C unless IC is given; cannot solicit a substantial gift from C; L cannot provide financial costs - except an advance of court costs, etc.; no sex with C!
Rule 1.10 - Imputation of C of I - General Rule
When L is w/ a firm, he shall not knowingly represent a C when any of them practicing alone wouldn't be able to. When L leaves, the firm may represent a C that is materially adverse to L's C, so long as the firm retains no info about the C.
Rule 3.7 - Lawyer as Witness
L shall not represent at a trial where he is likely to be a witness unless the testimony is on an uncontested issue or T relates to legal services/billing; or disqual. would be a sub. hardship on C.
Rule 1.9 - Duties to Former Clients
L cannot rep a person whose case is materially adverse to a former C's (or the firm's former C), unless the former C has given IC in writing. L cannot use info to disadvantage former C.