Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
158 Cards in this Set
- Front
- Back
|
Lawyer has a duty of _________ to client/s
|
confidentiality, loyalty, financial responsibility, competence, other reasonable things
|
|
|
Duties that run to entities other than clients include:
|
candor/truthfulness, fairness, dignity/decorum, and other reasonable things
|
|
|
Subjects of duties other than clients:
|
court/tribunals, adversaries (parties & their counsel(, profession, third parties, public
|
|
|
Building block sentence
|
Lawyer has a duty of _________ to __________
|
|
|
Duty of confidentiality
|
Lawyer can't reveal anything related to the representation of a client without her consent.
|
|
|
Scope of lawyer's duty of confidentiality
|
Applies regardless of whether client requested that information be kept "confidential" or whether revelation might harm/embarrass the client
|
|
|
A duty of confidentiality can attach…
|
before a lawyer-client relationship is formed, or even if none is formed.
|
|
|
What happens if there's a violation of duty of confidentiality?
|
law firm must withdraw from all representation
|
|
|
A really good disclaimer to avoid a duty of confidentiality might say…
|
I understand/agree that law firm will have no duty to keep confidential the information I am now transmitting (not, I am not by this forming a lawyer/client relationship)
|
|
|
Difference between scope of attorney/client confidentiality/privilege
|
Scope of confidentiality is broader and also includes disclosures that could reasonably lead to discovery of confidential information by a third party.
|
|
|
Difference between source of information of attorney/client confidentiality/privilege
|
AC privilege shields only information obtained from the client or his agents
|
|
|
Difference between timing of attorney/client confidentiality/privilege
|
Confidentiality continues indefinitely; privilege stops earlier (CA/ when client's estate is settled)
|
|
|
Exceptions to the attorney-client confidentiality rule
|
Consent (after consultation or implied from client instructions); crime (death/substantial bodily harm - lawyer MAY reveal what's necessary to prevent an act, if reasonably believes that disclosure is necessary to prevent a CRIME (CA only) likely to result in reasonably certain death/substantial bodily harm; fraud/financial crimes - CA? NO, ABA? Yes, if client uses lawyer's services to commit the crime and disclosure would prevent/mitigate substantial financial loss; Defending self - (against malpractice, disciplinary action; refuses to pay, forcing lawyer to sue for fees...as necessary to establish claim/defense)
|
|
|
CA rule on revealing attorney-client confidences
|
Requires CRIME leading to result in reasonably certain death/substantial bodily harm; must if reasonable in the circumstances, make a good faith effort to persuade client not to commit the act and inform client of decision to reveal confidences; no financial exception
|
|
|
Lawyer has a conflict of interest if…
|
interests of lawyer, another client, or a third party materially limits or is adverse to a loyal representation of the client
|
|
|
If conflict emerges after representation begins
|
disclose and get further consent
|
|
|
Layer must not take on representation unless…
|
lawyer reasonably believes can represent everyone effectively, despite a potential or actual conflict (objective); informs each affected client (watch for confidentiality problem); client consents, confirmed in writing (writing can be made by lawyer)
|
|
|
Imputed disqualification
|
all members of a firm share conflicts
|
|
|
CA rule on imputed conflicts
|
CA follows ABA rules for disqualification but will not subject lawyer for discipline for imputed conflicts
|
|
|
Exceptions to imputed conflicts that require an ethical wall include…
|
previous government services, purely personal relationship of lawyer that would not affect ability of other firm members to represent client
|
|
|
Issue spotter on conflicts:
|
Look for colleagues' conflicts as well as own
|
|
|
Remedies for conflict…
|
refuse to take the case, advise multiple clients to get separate counsel; withdraw
|
|
|
L may enter into business with a client or obtain an interest adverse to hers only if:
|
terms are fair to the client; fully disclosed in understandable writing; client has an opportunity to consult an outside lawyer; client provides written consent
|
|
|
L is __________ from serving on the board of directors of a corporate client; it is likely to __________. Exception: ____________.
|
strongly discouraged; compromise the duties of loyalty and confidentiality … legal services org that is not L's employer as long as L doesn't knowingly participate in a decision/action of the organization adverse to client
|
|
|
L who is board member _______ represent an officer accused of embezzling
|
may not; officer and corporation are in direct conflict; they're now in conflict, so she can't be loyal to both
|
|
|
L can't limit C's right to report L for ___________-, or limit _____________ liability on entering relationship with client.
|
ethical or other professional violations … malpractice
|
|
|
Publicity?
|
CA maybe, as long as client clearly understands/consents; ABA not before representation has ended
|
|
|
Loans/advances?
|
CA - L can't pay prospective client's debts; otherwise loans OK if written agreement. ABA - no financial assistance except costs/litigation expenses when representing an indigent and advance of litigation expenses in contingent fee cases
|
|
|
California will allow lawyers to do ________ than the ABA but will usually require ___________.
|
more … writing
|
|
|
Use/communication of information relating to the representation of a client to her disadvantage and without consent violates…
|
BOTH the duties of loyalty and confidentiality
|
|
|
L can't solicit a substantial gift from a client, or draft a legal instrument for a client who is not a close relative if it…
|
provides a substantial gift to L or L's relative.
|
|
|
Lawyer can't oppose a party represented by a __________ without client consent.
|
relative
|
|
|
"Close relation"/relative -
|
immediate family - parent/child/sibling/spouse - in CA - also other intimates/shack mates
|
|
|
CA prohibits attorneys from testifying in ____________ unless ____________-
|
jury trials… client consents in writing
|
|
|
ABA prohibits lawyer from serving as counsel and witness in same trial unless _____________.
|
doing so won't prejudice client AND L's testimony is uncontested/regarding nature/value of services rendered, or L's distinctive value to the case means withdrawal would impose substantial hardship to client.
|
|
|
General rule with conflicts between clients
|
L may represent clients with potential conflicts with the proper consent of all, but it is almost never proper if their interests are in actual conflict
|
|
|
Always watch out for the duty of ____________ in a multiple client representation
|
confidentiality
|
|
|
__________ rules prohibit L from taking a case adverse to C currently representing; __________ don’t prohibit, but it is ____________.
|
California… ABA… rarely reasonable
|
|
|
CA does not prohibit L from representing a policy holder and his __________ as joint clients, where _____________.
|
insurance company…insurer's interest in each matter is only as an indemnity provider
|
|
|
L can argue for clients with inconsistent positions __________________, but if either would be disadvantaged, L must ____________.
|
with the consent of both clients … withdraw
|
|
|
Any time L represents multiple clients, there is a ___________, but it may be acceptable with _________-
|
potential conflict… reasonable consent
|
|
|
If L represents multiple clients, and an actual conflict arises, the best remedy is to _________---
|
withdraw from both and advise them to get separate counsel.
|
|
|
If L represents multiple clients, and L learns damaging info re one party, L must at least_____________
|
withdraw from representing the other party because now L has relevant, confidential information that L cannot use in pursuing undivided loyal representation of that party
|
|
|
If confidential information from former client might be relevant to work on a new client's matter, L may be violating ____ and ___________
|
continuing duty of confidentiality as well as L's duty of loyalty to former client.
|
|
|
L can't take on a new client that is materially adverse to a former client without ________________.
|
the former client's written consent.
|
|
|
When taking on new clients in matters related to former clients, consider whether ___________.
|
representations overlap in function, scope or information.
|
|
|
Imputed disqualification applies to former firm after L leaves if _______________.
|
the matters are substantially related or the same and any remaining lawyer has confidential, material information.
|
|
|
California law ________________ from later working on the defense of the same case.
|
bars prosecutors
|
|
|
If a government lawyer worked ______________ on a __________, then it would be a conflict to work on the same ____________ in private practice - at least not without __________ of former government employer.
|
personally and substantially … matter … matter … written consent
|
|
|
Matter means
|
a specific dispute, between specific people, over specific issues
|
|
|
Imputed disqualification re former government lawyers -
|
Exception if former government L is screened off; L does not share any part of the fee in the matter (pre-arranged salaries/partnership shares OK, but NOT bonuses related to matter); former government employer is conformed (need not consent)
|
|
|
Former government lawyers follow same rules as former _______________.
|
judges, clerks, arbitrators.
|
|
|
General rule re conflicts due to third party interference:
|
L's duty is to client, not to any third party.
|
|
|
Compensation for services from third party is _____________.
|
permitted only with informed client consent
|
|
|
A lawyer must act in the best interest of the ______, even if an officer, employee, or other associated person __________.
|
entity… might act to the contrary
|
|
|
Lawyer discovers that officer of client company has materially violated securities laws. Lawyer must __________________.
|
report the matter to the CEO or CLO. If they don't respond, L must go to board or highest authority in the company. If L reasonably believes it necessary to prevent fraud or substantial injury to the organization or investors, or if your services were used, L MAY report confidential information to the securities exchange commission w/o client consent.
|
|
|
CA distinction on securities violations:
|
Permits internal reporting (where fed law requires); prohibits outside reporting. BUT, federal securities laws trump under preemption
|
|
|
CA fee agreements for non-contingency cases ____________,unless _________________.
|
must be in writing, unless fee is < $1K, with corporate client, is for routine services for regular client, or it is an emergency/impractical
|
|
|
Written contingency fee agreements must be signed by client and contain:
|
L's %, expenses to be deducted from recovery, and whether L's % is taken before or after expenses; CA also requires how work not covered by the contingency fee will be paid, that L's fees are negotiable (not some standard %).
|
|
|
CA allows ____________ to guarantee collection in ___________ but not ___________fees.
|
charging liens… contingency… hourly
|
|
|
ABA prohibits contingent fees in ______________ cases.
|
domestic (Divorce), criminal
|
|
|
CA prohibits contingent fees in ______________ cases.
|
divorce IF fee arrangement encourages breakup of otherwise savable marriage - silent on criminal cases,
|
|
|
If contingency client fires lawyer before judgment, lawyer can recover ___________---
|
if and win client wins, in % of the work he did.
|
|
|
CA ceiling on fees: _________________; ABA standard is _____________
|
must not be unconscionably high… reasonable, based on totality of circumstances (labor, novelty, difficulty, skill, timing, result, experience, arrangement, etc.)
|
|
|
Fee disputes: California _____________ arbitration; ABA ___________ arbitration.
|
requires … encourages
|
|
|
High hourly payment is OK _________________; not OK if ______________.
|
if good faith valuation of L's worth… a penalty
|
|
|
Fee splitting is __________ among lawyers in a firm; with lawyers outside firm ________________-; ABA also requires that division must be ____________.
|
generally OK; …if total fee is ethical, written disclosure and consent; proportional.
|
|
|
Attorneys may not split fees with _____________, except:
|
non-lawyers … death benefits, non-profit organization that employed/recommended, qualified lawyer referral service.
|
|
|
__________ cannot be partners, shareholders, officers, or control or direct a lawyer's judgment in providing legal services.
|
Non-lawyers
|
|
|
L can enter reciprocal referral arrangements with a non-lawyer professional/another lawyer if it is ___________ and __________.
|
non-exclusive … explain arrangement to client at time of referral
|
|
|
if a lawyer personally provides a client with non-legal services along with legal services, lawyer ___________-
|
is subject to the ethical rules.
|
|
|
L has a duty to safeguard ____________, by
|
client's property, by labeling and storing it in a safe place - e.g., office safe.
|
|
|
No _______ or __________ of client and personal funds; client money must be placed in a _____________.
|
borrowing… comingling … client trust account
|
|
|
Smaller funds held for a short period of time for several clients at once can be deposited into a _____________-
|
pooled client trust account.
|
|
|
Disputed claim for fees or 3d party claim on client's property? L _____________
|
must hold the disputed portion in the client trust account until resolution.
|
|
|
CA requires L to keep records of client property for _________-
|
5 years, and to make records available to State Bar for audits
|
|
|
Duty of competence:
|
Using the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation.
|
|
|
Violation of duty of competence subjects L for
|
Discipline by bar, DQ as counsel in a litigated matter, civil malpractice liability
|
|
|
Professional responsibility is ____________; malpractice is _____________
|
duty of competence … duty of due care
|
|
|
Duty of diligence
|
Duty to diligently, promptly and zealously pursue case to completion
|
|
|
Duty to communicate means -
|
L has duty to keep client informed about the case, including settlement offers and returning messages
|
|
|
A lawyer is not a _________; L can ____ or ______ any case.
|
bus… accept… reject
|
|
|
L __________ as part of the duty to the public and profession ______________
|
should accept … (a) the case of the defenseless or oppressed "if your only reason to refuse is selfish," and (b) a fair share of work without charge (ABA rules urge 50 hours of pro bono work a year for truly indigent clients).
|
|
|
L must reject a case if he would ____________.
|
violate an ethical rule.
|
|
|
L makes decisions about _________; client makes decisions about ____________.
|
procedure and legal strategy… substantive rights
|
|
|
Scope of representation does not include assisting a client in conduct L knows is _________.
|
criminal
|
|
|
Three ways to leave case before matter is resolved:
|
Client fires L; Mandatory withdrawal (if continuing would violate a law/ethical rule); permissive withdrawal (for good cause - client refuses to pay, client acts illegally, client insists on pursuing repugnant or imprudent object)
|
|
|
Knowingly pursuing ____________ violates duties of ______ and ___________.
|
frivolous claim... candor… fairness
|
|
|
To withdraw, L must_______.
|
provide timely notice to client; promptly return unspent fee and expense advances, and all material papers and property of the client - even L's work product (even if client hasn't paid)
|
|
|
____________ forbids withholding client's materials for __________.
|
California … L's money.
|
|
|
After going through all duties, __________________.
|
look for other things that make you feel uncomfortable and discuss them briefly.
|
|
|
State can limit attorney advertising under
|
the commercial speech doctrine of the First Amendment
|
|
|
A restriction on attorney advertising is constitutional if:
|
government asserts a substantial interest (e.g., preserving dignity of legal profession); regulation directly advances that interest; regulation is narrowly tailored
|
|
|
Lawyer's advertising must not be ______________
|
false or misleading (including by omitting material information)
|
|
|
Ally advertises that she prepares "simple wills" for $300, but nearly always does pricier complex wills. Is the advertisement misleading?
|
Yes
|
|
|
An ad may not raise ____________ or _____________.
|
unjustified expectations or make unverifiable comparisons
|
|
|
CA presumes improper any ad that contains __________, ____________ or _________. Testimonials or endorsements _________________.
|
guarantees, warranties, predictions of a result… unless there is an express disclaimer that they are not a GWP.
|
|
|
L may not advertise claims of specialization unless ____________, but can __________ fields of practice.
|
certified specialist … explain
|
|
|
Advertising must not _________ or solicit someone who has indicated that she wants to be left alone.
|
harass
|
|
|
Advertisements must be _________ as such; must ______ at least one lawyer for its contents, and Lawyers must keep records of content/placement of any ad for ____________.
|
labeled… identify… 2 years
|
|
|
CA has additional specific actions presumed to be advertising ______________-
|
violation
|
|
|
Anti-solicitation rule:
|
Lawyer must not seek professional employment for pecuniary gain by initiating a live/phone contact with a prospective client with whom you have no prior professional, personal, or family relationship
|
|
|
"Live or telephone" ___________ in CA; ____________ in ABA.
|
is read narrowly … extends to other real-time electronic content
|
|
|
CA presumes that communications _________ are improper; so are communications to potential clients that lawyer should know _______________.
|
at the scene of an accident or en route to a medical facility … are not in the physical/mental state to exercise reasonable judgment
|
|
|
Anti-solicitation rule also applies to _____________.
|
agents for lawyers
|
|
|
Duty of candor:
|
A lawyer is prohibited from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation
|
|
|
Duty of candor can override the conflicting duties of _____________ and _____________.
|
confidentiality … loyalty
|
|
|
Duty of candor is owed to the
|
court
|
|
|
Under the duty of candor, L must refuse to make a __________, or offer ______________, or _________ a false statement of material fact or law previously made to the court.
|
false statement of material fact… evidence you know is false … fail to correct
|
|
|
L must refuse to call client in a _____ if you know he intends to _________ himself
|
civil case... perjure
|
|
|
Criminal Ds have a ________ amendment right to testify on their own half and a _______ amendment to effective assistance of counsel. Counsel must also
|
fifth, sixth … protect client's confidences
|
|
|
If client tells L he intends to testify falsely in criminal case. L must:
|
take reasonable remedial measures: Counsel Ted to testify truthfully or not to take the stand; if that fails, L may try to withdraw from case; if that fails, L may - CA - allow D to testify in narrative fashion, do not further deception; ABA - tell the judge
|
|
|
The constitutional right to counsel and the duty of confidentiality ___________ perjury
|
do not protect
|
|
|
Lawyer's duty to present facts and evidence truthfully ends ____________--.
|
with the proceedings
|
|
|
Under the duty of candor, L must not counsel/assist a witness _______ or _______-.
|
to testify falsely or become unavailable.
|
|
|
If W will testify falsely, L should ____________.
|
refuse to put W on the stand.
|
|
|
If L does not know, but only suspects, that testimony is false, the rules of candor ____________.
|
become permissive
|
|
|
L may pay basic expenses of a witness and reasonable fees for expert witnesses, so long as ______________.
|
payment is not contingent on the content of the testimony.
|
|
|
Duty to produce evidence:
|
L must not suppress evidence that L or client has a legal obligation to reveal or produce, regardless of duty of loyalty
|
|
|
Based on L's duty to produce evidence, L must not ___________ or _________ fruits and instrumentalities of a crime
|
obstruct or tamper with
|
|
|
L must turn over ____________, but may not ___________ what client told L.
|
evidence… disclose
|
|
|
L must draw a line between ______________ and ______________.
|
physical evidence … confidential information
|
|
|
When must L disclose what investigator finds re evidence?
|
When investigator moves or alter evidence - must produce it and may be compelled to testify it; not when just sees evidence
|
|
|
L may retain evidence ________________ to _____________.
|
for a reasonable time… prepare his client's case
|
|
|
Prosecutors have a special duty to ________________________.
|
timely disclose evidence favorable to the defense.
|
|
|
___________ are unusual communications with the judge without adversary present; because of duty of candor to court and fairness to absent adversary, L must…
|
Ex parte proceedings… reveal relevant information even if harmful to client's case
|
|
|
L must cite to ____________ authority if from ______________ and _____________
|
adverse… controlling jx and directly on point
|
|
|
Lawyer must withdraw if continued representation would ____________
|
require L to assist in or commit a crime.
|
|
|
Duty of fairness: L has duty to behave ______- in all dealings (whether or not in practice of law)
|
honestly
|
|
|
Where there are no explicit rules, L must act to promote _______________ in the integrity and efficiency of ________________.
|
public confidence … legal system and profession.
|
|
|
If client persists in actions that L reasonably believes are criminal/fraudulent, but L is not assisting in a crime, L __________- withdraw.
|
may
|
|
|
If client is going to commit a crime that is reasonably likely to result in death/serious bodily injury, disclosure of confidence is ________.
|
permissive.
|
|
|
Client's crime would only cause substantial financial loss, CA ________; ABA ____________.
|
forbids L from revealing confidences to prevent/rectify crime … permits disclosure only if L's services were employed in the crime.
|
|
|
L must not violate legal rights of a person in order to ____________, or use means with ______________.
|
obtain evidence … no purpose but to delay, burden or embarrass them
|
|
|
When does L need consent of other party's counsel?
|
To communicate w/ party L knows is represented by counsel (except if party seeks 2d legal opinion)
|
|
|
In CA, consent is required for interviews of ______________________.
|
officer, director, managing agent, or any current employee whose communication might bind or be imputed to the organization or constitute an admission on its part
|
|
|
Does L need consent to interview a former employee?
|
No
|
|
|
Does L need consent to interview a witness for other side?
|
No, if not represented
|
|
|
L may not make out-of-court statements that L reasonably should know…
|
have a substantial likelihood of materially prejudicing the case (exceptions include defending from substantial undue prejudice from recent publicity not self-initiated)
|
|
|
Prosecutors have __________ than criminal/civil defense attorneys, including _____________.
|
higher ethical obligations… probable cause
|
|
|
Prosecutors and associates must not make comments that _________________.
|
have a substantial likelihood of heightening public condemnation of the accused.
|
|
|
Rules about Ls talking to jurors:
|
L may not talk to any prospective/empanelled juror before or during trial, but may interview jurors after trial so long as L doesn't harass jurors or influence their future jury service
|
|
|
No "chicanery" -
|
referring to inadmissible material, alluding to matters unsupported by evidence, etc….
|
|
|
L has duty to preserve the ____________- or tribunal
|
decorum
|
|
|
CA forbids ______ to harass an adversary, or for personal gain/convenience; ABA rules mandate _____________.
|
delaying cases… affirmative duty to expedite cases
|
|
|
L must follow valid procedural rules or court orders unless making a ____________ challenge to ___________.
|
good faith… validity.
|
|
|
Lawyer must not engaged in __________ practice of law.
|
unauthorized/unlicensed
|
|
|
CA rules governing out-of-state lawyers group them into:
|
registered legal service attorneys, registered in-house counsel for institution (no individual representation/court appearances, litigating and nonlitigating attorneys practicing temporarily in the state
|
|
|
Pro hac vice means…
|
an order by a local court allowing lawyer to practice in a state where not admitted
|
|
|
Out of state lawyers practicing in California must…
|
register with the California bar, pay dues, satisfy CLE requirements and be subject to CA ethics rules
|
|
|
ABA rules governing multijurisdictional practice allow…
|
temporary practice by an out-of-state lawyer in good standing if the lawyer associates with a locally admitted lawyer who actively participates in the matter, or the services relate to alternative dispute resolution, or the matter arises out of matters reasonably related to the lawyer's practice in a state where she is admitted and are not services where the forum requires a pro hac vice appearance
|
|
|
When does the ABA require a lower to report misconduct, and to whom?
|
lawyer/judges violation of rules in any legal/non legal context if it raises a substantial question as to that person's honesty, trustworthiness or fitness as a lawyer/judge… to the appropriate legal authority
|
|
|
When does CA require a lawyer to report misconduct, and to whom?
|
CA requires self-reporting of the lawyers being charged with felony/certain crimes, found civilly liable for fraud/breach of fiduciary duty, disciplined in another jurisdiction, or under certain conditions sued for malpractice/sanctioned
|
|
|
In ________, a lawyer can be ______ for merely knowing a bout a fellow firm member's disciplinary violation but ___________
|
California…disciplined…doing nothing to prevent it
|
|
|
Subordinate's duty if partner tells to do something that is clear violation?
|
Subordinate is subject to discipline
|
|
|
Subordinate's duty if partner tells to do something that is debatable?
|
Partner solely responsible
|
|
|
Supervising partner's ethical responsibility - if he ___________ or knew ______________?
|
ratified the conduct … knew of the conduct and failed to take action - Supervisor has violated
|
|
|
_____________ must take reasonable effort to ensure that everyone's conduct in a firm comports with ______________, including ____________.
|
Managing partners… professional obligations of a lawyer…non-lawyer assistance
|
