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44 Cards in this Set
- Front
- Back
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building block analysis:
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"The lawyer has a duty of _______ to __________ "
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Duties:
Clients Love Fierce Counsel, Courts Feel Differently |
Confidentiality, Loyalty, Financial Responsibility, Competence; Candor, Fairness, Dignity/Decorum
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Duty of Confidentiality entails
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that you do no reveal anything related to the representation of a client w/ out her consent. Reason: encourage candor and trust.
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A/C Privilege v. Confidential Info
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A/C is more narrow evidence rule that allows a client and attorney to refuse to testify about confidential communications between them or their agents. Note: ONLY applies between client (and agents) and attorney
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A/C privilege *CA distinction
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terminates when the client's estate is settled. while duty of confidentiality continues indefinitely
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Exceptions to duty of Confidentiality:
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- Consent:
- Implied consent -Crimes: -Defending yourself -Compelled by law, final ct. order or other controlling ethical duties |
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Exceptions to duty of Confidentiality:
CRIMES |
a. Death or substantial bodily harm:
You MAY reveal whats NECESSARY to prevent the act, if you reasonably believe disclosure is necessary to prevent a crime likely to result in certain death or sub. bodily harm. ABA does not require a criminal act *In CA you must first, if reasonable, make GOOD FAITH effort to persuade client, INFORM client you will tell b. Fraud or financial crimes *CA NO FINANCIAL exception ABA, YES, if client used your services to commit crime and disclosure would prevent or mitigate sub. fin. loss |
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Exceptions to duty of Confidentiality:
Defending yourself |
sued for malpractice, disciplinary action, refuses to pay
allowed to reveal conf. info necessary to est. your claim or D |
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Duty of loyalty =
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Conflict of interests
If an interest of you, another client, or a 3rd party "materially limits or is adverse to loyal representation", you have a conflict. |
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Duty of loyalty:
RULE |
Must not take on representation unless:
A) reasonably believe you can represent everyone effectively despite a potential or actual conflict B) You INFORM each affected client. (if duty of con. prevents you to inform, then consent may not be possible) C) The client CONSENTS IN WRITING |
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Imputed disqualification =
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you and all members of your firm share conflicts.
*CA follows this rule but does not discipline for imputed conflicts |
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Imputed Conflicts:
REMEDIES |
refuse to represent, advise multiple clients to get separate counsel, or withdraw
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Lawyer/Client conflicts
BUSINESS TRANSACTIONS |
May enter into business w/ client or obtain interest adverse to hers only if:
1) terms are fair to client 2) fully disclosed in understandable writing 3) client has opportunity to consult outside lawyer 4) client provides written consent |
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Lawyer/Client conflicts
PUBLICATION RIGHTS |
*CA: discourages Ks before the end of proceedings, but tolerates them if the judge is satisfied that the client clearly understands and consents
ABA: not before the representation has ended |
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Lawyer/Client conflicts
LOANS and ADVANCES TO CLIENT |
*CA prohibits the promise of paying a PROSPECTIVE client's debts, but allows loans in all matters for any purpose of there is a WRITTEN IOU.
ABA: no fin. assistance except for: costs and litigation expenses when representing an indigent and the advance of lit. expenses in contingent cases |
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Lawyer/Client Conflicts
CLOSE RELATIONSHIPS with opposing counsel |
include immediate family
*CA recognizes SHACKMATES |
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Lawyer/Client Conflicts
COUNSEL AS NECESSARY WITNESS |
*CA prohibits counsel from testifying in jury trials unless client consents in writing.
ABA more restrictive: cant serve as counsel and wit. in same trial unless your appearance wont prejudice client and testimony is uncontested or regarding nature+value of services or if your distinctive value to case renders withdraw a hardship |
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Conflicts between clients
OPPOSITE SIDES OF SAME MANNER |
unreasonable to represent both, even in imputed conflict cases
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Conflicts between clients
OPPOSING PRESENT CLIENTS INTEREST |
*CA prohibits you from taking a case adverse to a client you are currently representing,
ABA does not prohibit, but rarely is it reasonable NOTE: exception for indemnity providers |
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Conflicts between clients
TWO CLIENTS W/ INCONSISTENT POSITIONS |
okay w/ written consent of both clients, but if either would be disadvantaged you must withdraw
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Conflicts between clients
MULTIPLE CLIENTS IN SAME MATTER |
ie. insured and ins.co
corp and dir. officer, employee.. both spouses |
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Conflicts between clients
NEW CLIENTS in matters RELATED TO FORMER CLIENTS |
cannot take on new clients with interests materially adverse to a former client w/ out former's consent
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Conflicts between clients
FORMER GOVT LAWYER NOW IN PRIVATE PRACTICE |
*CA explicitly bars prosecutors from later working on defense of same case. (Screen new private lawyers)
ABA says if govt lawyer worked "personally and substantially on a matter.. then it would be a conflict to work on same matter in private practice. |
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Conflicts between clients
FORMER GOVT LAWYER NOW IN PRIVATE PRACTICE IMPUTED DISQUALIFICATION |
may other members of your firm? YES, IF the:
1) you are screened off 2) you do not share any part of the fee in the matter, and 3) your govt employer is informed |
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Conflicts due to 3rd party interference
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Rule: your sole duty is to your client not to any 3rd party
- Compensation from 3rd party okay with informed client consent |
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Conflicts due to 3rd party interference
ORGANIZATIONAL CLIENTS |
a lawyer must act in the best interest of the entity, even if an officer or employee acts to the contrary.
- Report matters to CEO of Chief Legal Counsel.. then to Board, then to highest authority in company FINALLY, if reasonable to prevent fruad or substantial injury to entity, disclose to SEC |
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Financial Duties to Client:
ATTORNEY FEES |
CA and ABA require agreements include: how fee is calculated, what services are covered, lawyer/client's duties
*CA requires agreements be in writing, unless fee less than 1k, corp client, or routine services, or emergency |
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Financial Duties to Client:
ATTORNEY FEES contingent fee cases |
written agreements must be signed and contain:
1) your % 2) what expenses will be deducted from recovery 3) whether your % is taken before or after expenses *CA requires additionally that: 4) how work not covered by cont. fee will be paid, and 5) lawyers fees are negotiable, rather than a standard % *CA allows charging liens to guarantee collection |
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Financial Duties to Client:
ATTORNEY FEES contingent fee cases TYPES OF ACTIONS |
ABA: no contingent fees if for: domestic relations or criminal cases
*CA is silent on criminal cases and allows contingent fees in divorces so long as fee does not encourage divorce |
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Financial Duties to Client:
ATTORNEY FEES When are fees to High? |
*CA rule: fees must not be unconscionable
ABA: fees must be reasonable (Factors: labor, time, skills, complexity..) |
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Financial Duties to Client:
ATTORNEY FEES FEE SPLITTING |
Generally okay to split fees w/ attorney in same firm
May split with outside attorney if there is written disclosure and consent ABA further requires division to be proportional to work |
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Financial Duties to Client:
ATTORNEY FEES CLIENT TRUST ACCOUNTS |
duty to safeguard clients property.
- money held must be place in client trust account (NO COMMINGLING) *CA requires you keep record of client property for 5 years |
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Duty of competence
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Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation
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Duty of diligence
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duty to diligently, promptly and zealously pursue clients case to completion
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Duty to communicate
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duty to keep client informed:
settlement offers, return calls, emails.. |
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Duties to withdrawal from representation
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1) client fires you
2) Mandatory withdrawal: if continuing would violate a law or ethical rule 3) Permissive withdrawal: if you convince the ct. there is good cause and withdrawal will not cause undue delay or disruption |
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Procedure to withdrawal
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a. provide timely notice to client, and
b. must promptly return: - any unspent fee or expense advance - all material papers and property, even work product. *CA forbids w/ holding clients materials for your money |
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Advertising
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must not be false or misleading
watch for claims of specialties |
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Solicitation
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Do not seek professional employment for pecuniary gain, by initiating a live or telephone contact w/ a prospective client with whom you have no prior professional, personal or family relationship.
*CA allows chat room solict ABA says no as it is real time electronic contact *CA presumes solict at scene of accident or on route to treatment is improper |
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Runners or cappers..
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cant do anything a lawyer cant do
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Candor to Ct.and fairness to adversary
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lawyers prohibited from engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation
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Candor to Ct.and fairness to adversary
DUTY TO PRESENT FACTS/EVIDENCE truthfully |
must refuse to make false statement of material fact or offer evidence you now to be false to tribunal or FAIL to correct
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Candor to Ct.and fairness to adversary
CLIENT PERJURY |
must not knowingly facilitate client perjury
- if matter is civil, must refuse to call client as witness if you know will perjure - if criminal, D has 5th, 6th right to testify - in criminal, may try to withdrawal, if that fails then *CA allows D to testify in narrative form ABA tell the judge and he will decide |
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Candor to Ct.and fairness to adversary
DUTY TO PRODUCE EVIDENCE |
do not obstruct or hide evidence, but still protect confidential communication
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